Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 9 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the any Assisted Securitization and may also be included in filings with the Securities and Exchange Commission SEC pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the any Assisted Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note each Initial Lender in updating the Disclosure Document in connection with an Assisted Securitization by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the any Assisted Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, if applicable and without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and/or such sections in Disclosure Documents under different headings and containing information provided by the Borrower relating to the Properties, Collateral, Senior Mezzanine Collateral, Mortgage Borrower, Senior Mezzanine Borrower, Borrower, Principal, Holdings, the Operating Company, the Mortgage Loan, Senior Mezzanine Loan and the Loan and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, Principal, Holdings, the Collateral, the Senior Mezzanine Collateral and/or Operating Company, the Mortgage Loan and the Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying the applicable Initial Lender, each Noteholder, JPM (whether or not it is the Lender), and any Affiliate of JPM or a Noteholder such Initial Lender that has filed any registration statement relating to the an Assisted Securitization or has acted as the sponsor or depositor in connection with the an Assisted Securitization, any Affiliate of JPM or a Noteholder the applicable Initial Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Assisted Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Assisted Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject (whether or not arising from any third party claim) insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to the applicable Initial Lender or such Noteholder the Noteholders by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Initial Lender in writing and Initial Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 9.10 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.29.10. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.10 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.10), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.29.10, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.10 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.10.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 9.10 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) . Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 8 contracts
Sources: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc), Eighth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Lender shall provide Borrower adequate opportunity to review any such Disclosure Document is required and to be revised prior provide any such comment to the sale of all Securities, Lender as Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessiondeems necessary.
(b) Borrower agrees to provide, provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent specified by Lender and that each such information Disclosure Document, as it relates to or includes any Provided Information or any information regarding Borrower, Borrower Affiliates, the Properties, Borrowerthe Property Manager and all other aspects of the Loan, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying Lender(and for purposes of this SECTION 12.3, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section SECTION 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"LENDER GROUP"), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the Covered omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clause (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Information Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, appraisals, market studies, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower may otherwise have.
(c) In connection with Exchange Act filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (iiiii) agreeing to reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting Group or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question (which consent shall not this Section is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether or not any Indemnified Person is an actual or potential indemnifiable under this Section, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, Person
(i) Lender's and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Lender and Borrower agrees hereby agree that in no event shall the amount to it would not be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed equitable if the amount of the fees (such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 SECTION 12.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 5 contracts
Sources: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM BSCMI (whether or not it is the Lender), any Affiliate of JPM or a Noteholder BSCMI that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder BSCMI that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of the Indemnifying Persons whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question BSCMI (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person BSCMI reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 5 contracts
Sources: Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, which are delivered to Borrower and Borrower Principal for review, an indemnification agreement certificate (iA) certifying that (AI) Borrower has and Borrower Principal have carefully examined such memorandum or prospectus or other document actually delivered by or on behalf of Lender (including any Investor or Rating Agency “term sheets” or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” or similar sections, and all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and any other sections reasonably requested by Lender (all such sections, collectively, the “Disclosed Materials”), and (BII) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, best of Borrower, Mortgage ’s knowledge except as specifically identified by Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) Disclosed Materials do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsIssuer Group”), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “LiabilitiesUnderwriter Group”)) for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon the Disclosed Materials or any reports delivered by or on behalf of Borrower or Borrower Principal in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and, if Borrower or Borrower Principal do not provide the indemnification certificate, shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 4 contracts
Sources: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” ”, “Special Considerations,” ”, “Description of the Collateral,” ”, “Description of the Mezzanine Loans,” ”, “The Operating Company,” ”, “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” ”, and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 4 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Ninth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Second Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (the entering into of which shall be at no cost to Borrower) (A) certifying that Borrower has carefully examined those portions of such Disclosure Documents specified by Lender for Borrower’s review pertaining to Borrower, Borrower’s Affiliates, Manager or the Loan and that each such Disclosure DocumentsDocument, including, without limitation, the as it relates to sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents specified with reasonable specificity by Lender relating to Borrower, Borrower’s Affiliates, the Property, Manager and any material aspects of the Loan, does not (except to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively specified by Borrower if Borrower does not agree with the Provided Information, the “Covered Disclosure Information”statements therein) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), and Lender, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, damages or liabilities, costs or expenses (including, without limitation, legal including reasonable attorneys’ fees and expenses for enforcement disbursements, other than those arising out of these obligations the gross negligence, willful misconduct or bad faith of any of the foregoing proposed indemnitees (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Informationsuch sections, in light of the circumstances under which they were made, not misleading (except that (x) Borrower’s obligation to indemnify in respect of any information contained in such sections that is derived in part from information provided by Borrower and in part from information provided by others unrelated to or not employed by Borrower shall be limited to any untrue statement or omission of material fact therein known to Borrower that results from an error in any information provided (or which should have been provided) by Borrower which Borrower has been given the opportunity to examine and reasonably and promptly approve (Borrower hereby confirms that it has reviewed and approved each of the appraisals, engineering, environmental and asbestos reports prepared by third parties in connection with the Loan) and (iiiy) Borrower shall have no responsibility for the failure of any member of the Underwriting Group to accurately transcribe written information supplied by Borrower or the refusal of any member of the Underwriting Group to include any written information supplied by Borrower after an explicit direction from Borrower to do so) and (C) agreeing to reimburse each Indemnified Person Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities to the extent that such legal or other expenses are incurred in connection with matters for which Borrower has agreed to indemnify the Underwriter Group herein; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss, claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls major customer lists with respect to the Properties), Property and not subsequently retracted or modified in no event shall Borrower be liable for Liabilities arising from information contained whole or in a Disclosure Document that was not provided part so as to Borrower for comment at least five (5) Business Days eliminate the misstatement or omission in question prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)any Securitization. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 4 contracts
Sources: Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust)
Securitization Indemnification. (a) Extended Stay and Borrower understands understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Extended Stay will cooperate with the holder of the Note in updating the Covered Disclosure Document Information by providing all current information necessary to keep the Covered Disclosure Document Information accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the structural and collateral term sheet and those sections of the Disclosure Documents, including, without limitation, the sections Documents entitled “Risk Factors,” ”, “Special Considerations,” ”, “Description of the Mortgage Loan and the Properties”, “Description of Collateral,” ”, “Description of the Mezzanine Loans,” ”, “The Operating Company,Manager” and “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (solely to the extent such information relates sections relate to or includes include any Provided Information or any information regarding the Properties, Borrower, Other Mezzanine Borrower, Mortgage Borrower, the Collateralany Mortgage Loan Party, the Senior Loan, the Mortgage Loan and/or the Other Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (ii) the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), Persons for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower the Indemnifying Persons may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it such Indemnifying Person may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it such Indemnifying Person may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel and local counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender or its designee (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceedings and does not include a statement as to, or admission of, fault, culpability or a failure to act by or on behalf of any Indemnified Person. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
(j) Borrower shall jointly and severally indemnify the Lenders and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates against any Liabilities to which any such Lender, each of their respective officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Liabilities arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of the Borrowers to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading.
Appears in 3 contracts
Sources: Mezzanine Loan Agreement (ESH Hospitality LLC), Mezzanine Loan Agreement (ESH Hospitality LLC), Mezzanine Loan Agreement (ESH Hospitality LLC)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, Lender hereunder shall include its officers and directors), each Noteholderof its directors, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectivelyliabilities to which Lender, the “Liabilities”)) to which any such Indemnified Person Lender Group or the Underwriter Group may become subject insofar as the Liabilities such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading (collectively, the “Liabilities”) and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Lender Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons Lender Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentencethereof; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall promptly notify the indemnifying party in writing, and shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) Lender’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 3 contracts
Sources: Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl)
Securitization Indemnification. (ai) Borrower understands that certain of the Provided Information may be included in Disclosure Documents and each Guarantor agree to provide in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933each Disclosure Document, an indemnification certificate, as amended (the “Securities Act”set forth in Section 10.02(d)(ii), or the Securities and Exchange Act of 1934indemnifying Lender, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securitiesany Issuer Person, the Rating AgenciesIssuer Group and/or the Underwriter Group (as those terms are defined in Section 10.02(d)(vii)) (each, an “Indemnified Party,” and service providers relating collectively “Indemnified Parties”) for any losses to which any Indemnified Party may become subject under the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note conditions set forth in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionthis Section.
(bii) Borrower agrees to provide, in connection with the Securitization, an The indemnification agreement (i) certifying that certificate will provide that
(A) Borrower has and each Guarantor have carefully examined those sections of the Disclosure DocumentsDocuments relating to the following:
(1) Borrower, includingany SPE Equity Owner, without limitationany Guarantor, any Property Manager, their respective Affiliates, the Loan and the Mortgaged Property (“Borrower Information”).
(2) The sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such or similar sections and such other information in the Disclosure Documents (but only to the extent such information relates sections specifically refer to or includes any Provided Borrower Information or any information regarding (“Borrower Information Sections”).
(B) To the Properties, best of Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively ’s and each Guarantor’s knowledge with the Provided regard to Borrower Information, the “Covered Disclosure Information”) Borrower Information Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is . Notwithstanding the Lender)foregoing, any Affiliate indemnification certificate may expressly exclude any information contained in third party reports prepared by parties that are not Affiliates of JPM Borrower or a Noteholder that has filed of any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Guarantor (collectively, the “Indemnified PersonsThird Party Information”), and the obligations and liability of Borrower and any Guarantor pursuant to this Section will not extend to the Third Party Information.
(iii) Borrower’s and each Guarantor’s agreement to indemnify the Indemnified Parties for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) losses to which any such Indemnified Person Party may become subject insofar as the Liabilities will extend only to such losses that arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents or arise out of or are based upon the omission or alleged omission to state in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents a material fact required to be stated therein or in such sections necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading (collectively, “Securities Liabilities”).
(iv) Borrower and (iii) agreeing each Guarantor agrees to reimburse each any Indemnified Person Party for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Party in connection with investigating or defending the Liabilities providedSecurities Liabilities.
(v) The indemnitors will be liable under Section 10.02(d) (ii), however, that Borrower shall have liability with respect to Liabilities arising out of (iii) or based upon the Covered Disclosure Information (iv) only to the extent that such Securities Liabilities arise out of of, or are based upon upon, any such untrue statement or omission made in the Covered Disclosure Information Documents in reliance upon upon, and in conformity with information with, Borrower Information furnished to Lender or such Noteholder any Indemnified Party by or on behalf of Borrower or a Guarantor in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower Borrower, any SPE Equity Owner or any Guarantor, and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five Mortgaged Property.
(5vi) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be is in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) have and (iii) above shall will be effective whether or not an indemnification agreement certificate described in clause (ithis Section 10.02(d) above is provided and will be applicable based on information previously provided by or on behalf of Borrower or a Guarantor if the indemnification certificate is not provided.
(cvii) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions For purposes of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.10.02(d):
Appears in 3 contracts
Sources: Multifamily Loan and Security Agreement (Steadfast Income REIT, Inc.), Multifamily Loan and Security Agreement (KBS Legacy Partners Apartment REIT, Inc.), Multifamily Loan and Security Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, private placement memorandum, offering circular or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum, includingprospectus or term sheets, as applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder L▇▇▇▇▇ Brothers Inc. (“L▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsL▇▇▇▇▇ Group”), and L▇▇▇▇▇, each of its directors and each Person who controls L▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the L▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and L▇▇▇▇▇ in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons L▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the L▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) L▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "DISCLOSURE Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Lender shall provide Borrower adequate opportunity to review any such Disclosure Document is required and to be revised prior provide any such comment to the sale of all Securities, Lender as Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessiondeems necessary.
(b) Borrower agrees to provide, provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent specified by Lender and that each such information Disclosure Document, as it relates to or includes any Provided Information or any information regarding Borrower, Borrower Affiliates, the Properties, Borrowerthe Property Manager and all other aspects of the Loan, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying Lender(and for purposes of this SECTION 12.3, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section SECTION 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"LENDER GROUP"), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the Covered omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clause (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Information Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, appraisals, market studies, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower may otherwise have.
(c) In connection with Exchange Act filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (iiiii) agreeing to reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting Group or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question (which consent shall not this Section is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether or not any Indemnified Person is an actual or potential indemnifiable under this Section, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) Lender's and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 SECTION 12.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the Securitization, a Securitization an indemnification agreement (iA) certifying that (Ai) Borrower has carefully examined the Disclosure Documents, including, without limitation, the Documents sections entitled “Risk Factors,” “Special Considerations,” Descriptions of the Mortgages”, “Description of the Collateral,” “Description of the Mezzanine Loans,” Mortgage Loans and Mortgaged Property”, “The Operating Company,” Manager”, “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,Mortgage Loan” and (Bii) such sections and such other information in the Disclosure Documents (Documents, but in each case solely as it relates to Borrower, Borrower Affiliates, the Property, Manager and all other aspects of the Loan and solely to the extent such the information relates therein was furnished to Lender by or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively on behalf of Borrower in connection with the Provided Informationpreparation of the Disclosure Documents or the underwriting and closing of the Loan (collectively, the “Covered Disclosure Information”) ), do not contain any untrue statement of a material fact known to Borrower or omit to state a material fact known to Borrower necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), and Lender, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, such Indemnified Person, as they are incurred, Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify shall (i) indemnify Lender, the Indemnified Persons Lender Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 9.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 9.2(b) or (which consent shall not c) is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) Lender’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansLoan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral Collateral, the Properties, Borrower, Senior Mezzanine Borrower, Baltimore Owner, Guarantor, Mortgage Principal, Mortgage Borrower, Manager, the Loan, any other Mezzanine Loan and/or Operating Companythe Mortgage Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not (and with respect to any portion of the Disclosure Documents prepared in reliance on the reports of third parties, to the best of their knowledge do not) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, a placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing other than a statement or omission based upon the reports of third parties that do not to reimburse each the Indemnified Person for Persons knowledge contain any legal untrue statement or other expenses incurred by such Indemnified Person, as they are incurredomission of a material fact necessary in order to make the statements made, in connection with investigating or defending light of the Liabilities circumstances under which they were made, not misleading) provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information Indemnified Persons will be liable in any case above but only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information thereon in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower and its Affiliates in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Securitization, including, without limitation limitation, financial statements of Borrower or its Affiliates, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties)Properties (other than third party reports which to the Borrower’s knowledge do not contain any untrue statement or omission of a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading) but excluding any projections made in good faith by Borrower or its Affiliates; and provided that this Section shall not apply to any Liabilities to the extent arising out of any untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission made in reliance upon and in no event connection with the written information furnished to Borrower or its Affiliates by Lender or any Indemnified Person expressly for use in the Disclosure Documents unless Borrower or Guarantor fails to correct any such untrue statement, misstatement or omission with respect to Borrower, Guarantor or their Affiliates that is known to Borrower or Guarantor or that, with the exercise of customary reasonable efforts, should be known to Borrower or Guarantor and (iii) agreeing to reimburse each Indemnified Person for any legal or other out-of-pocket expenses reasonably incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, Disclosure Documents shall not inure to the benefit of any Indemnified Person if Borrower be liable for Liabilities arising or its Affiliates shall sustain the burden of proving that any such loss, liability, claim, damager or expense resulted from information contained in the fact that a Disclosure Document that Person was not provided to Borrower for comment with a copy of the final Disclosure Documents at least five (5) Business Days or prior to its dissemination the written confirmation of the sale of such securities to such Person and the loss, liability, claim, damage or on which Borrower provided comments to Lender expense resulted from an untrue statement or misstatement contained in, or omission from, the preliminary Disclosure Documents that were corrected in writing and Lender failed to incorporate such comments (assuming such comments were accurate)the final Disclosure Documents. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Wyndham International Inc), Mezzanine Loan Agreement (Wyndham International Inc)
Securitization Indemnification. (a) Borrower understands and Guarantor understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects with respect to Borrower, Guarantor, the extent in Borrower’s possessionProperty and the Operating Tenant.
(b) Borrower agrees and Guarantor agree to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, solely with respect to the Disclosure Documents, including, without limitationfactual contents thereof related to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralGuarantor, the Senior Mezzanine Collateral and/or Operating Company) (collectively with Tenant, the REIT, the Manager, the Franchisor, the Property and the Provided Information, the “Covered Disclosure Information”Information and such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇, each of its directors and each Person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above (but solely with respect to the Covered Disclosure Information factual contents thereof relating to the Loan, the Borrower, the Guarantor, the Operating Tenant, the REIT, the Manager, the Franchisor, and the Property and the Provided Information), or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the ▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees and Guarantor agree to indemnify (i) Lender, the Indemnified Persons ▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. The indemnifying party’s legal counsel shall control the Indemnified Persondefense of such action, except that no settlement or compromise shall be accepted or entered into which would bind any indemnified party unless such indemnified party has given its prior written consent thereto, which consent will not be unreasonably withheld. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party. Prior to the occurrence and the continuance of an Event of Default, in the event that any indemnified party wishes to enter into a settlement agreement in connection with such action which would give rise to an indemnified obligation of the indemnifying party hereunder and such indemnifying party does not consent to such settlement agreement, such indemnified party agrees not to enter into such settlement agreement provided the indemnifying party delivers evidence reasonably satisfactory to such indemnified party that the indemnifying party shall be able to satisfy its indemnification obligations under this Section in the event a judgment is rendered against the indemnifying party with respect to such action. In such event, the indemnifying party shall pay or, at the indemnified party’s option, reimburse it for the reasonable fees and expenses of its legal counsel and other professionals.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) ▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower, and Guarantor hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Guarantor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information and the Required Records may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including a prospectus or private placement memorandum (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, upon request from the holder of the Note, Borrower will cooperate with the holder of the Note in updating the Provided Information or Required Reports for inclusion or summary in the Disclosure Document by providing all current information pertaining to Borrower and the Properties necessary to keep the Disclosure Document accurate and complete in all material respects with respect to the extent in Borrower’s possessionsuch matters.
(b) In connection with each of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, Borrower agrees to provide, in connection with the Securitization, provide an indemnification agreement certificate:
(iA) certifying that (A) Borrower has carefully examined those portions of such memorandum or prospectus, as applicable, pertaining to Borrower, the Disclosure Documents, including, without limitation, Property and the Loan including applicable portions of the sections entitled “Risk Factors,” “"Special Considerations,” “", "Description of the Collateral,” “Mortgage", "Description of the Mezzanine Loans,” “Mortgage Loan and Property", "The Operating Company,” “Manager", "The Borrower” " and “"Certain Legal Aspects of the Mezzanine Loans,” Mortgage Loan", and (B) such sections (and such any other information in the Disclosure Documents (sections reasonably requested and pertaining to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, Property or the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”Loan) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.;
Appears in 2 contracts
Sources: Loan Agreement (Banyan Strategic Realty Trust), Loan Agreement (Banyan Strategic Realty Trust)
Securitization Indemnification. (a) Borrower understands Borrowers understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note Notes in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in of the Disclosure Documents regarding the Properties, Borrowers, Principals, Manager and/or the Loan (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyInformation) (collectively with the Provided Information, the “Covered Disclosure Information”), and (B) do that the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, members, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Person” and collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, including legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any of the Covered Disclosure Information Documents, but only to the extent based upon Provided Information, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review the Disclosure Document, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower Borrowers may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filing, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Provided Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review such Exchange Act Filing, and (ii) to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one one
(1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified any Indemnifying Person.
(e) Without the prior consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheld, conditioned or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(i) Notwithstanding anything to the contrary contained herein, Borrower Borrowers shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that Borrower and Borrower Principal have examined certain portions of such memorandum or prospectus or other document (A) Borrower has carefully examined including any Investor or Rating Agency “term sheets” or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” or similar sections, and (B) all sections relating to Borrower, Operating Lessee, Borrower Principal, the Manager, their Affiliates, the Loan, the Loan Documents, any Operating Lease and the Property, and any risks or special considerations relating thereto, and that, to the knowledge of Borrower, such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleadingmisleading (any of the foregoing actions by Borrower and/or Borrower Principal, in each case, determined as of the date such information or statement is provided, a “Borrower Misstatement”), (iiB) indemnifying LenderLender (and for purposes of this Section 13.06, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsIssuer Group”), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “LiabilitiesUnderwriter Group”)) for any Losses to which any such Indemnified Person Lender or the Issuer Group may become subject insofar as the Losses arise out of any Borrower Misstatement contained in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or necessary in order to make the statements in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or are based upon any such untrue statement or alleged untrue omission made therein, as of the date such information or statement is provided, in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the memorandum or prospectus or other document (including any material fact contained Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in connection with the Covered Disclosure Information underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to each Individual Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.06 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.06, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.06 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any reasonable legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person counsel for an indemnified party shall have reasonably concluded that there may be legal defenses available to it its client that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.06(c) or Section 13.06(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.06(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.06(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.06 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Bon Ton Stores Inc), Loan Agreement (Bon Ton Stores Inc)
Securitization Indemnification. (a) Borrower understands Borrowers understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in of the Disclosure Documents regarding the Properties, the Collateral, Mortgage Borrowers, Borrowers, Principal, Manager and/or the Loan (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyInformation) (collectively with the Provided Information, the “Covered Disclosure Information”), and (B) do that the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, members, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Person” and collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, including legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any of the Covered Disclosure Information Documents, but only to the extent based upon Provided Information, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review the Disclosure Document, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower Borrowers may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Provided Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review such Exchange Act Filing, and (ii) to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheld, conditioned or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(i) Notwithstanding anything to the contrary contained herein, Borrower Borrowers shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the any Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Approved Rating Agencies, and service providers relating to the any Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent such information is in Borrower’s possessionpossession or control.
(b) Borrower agrees to cause Parent to provide, in connection with the any Securitization, an indemnification agreement (a “Securitization Indemnification Agreement”) (i) certifying that (A) Borrower Parent has carefully examined the Covered Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Information and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not Information does not, as of the date of the related disclosure document or as of the date of pricing the Securitization, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the any Securitization or has acted as the sponsor or depositor in connection with the any Securitization, any Affiliate of JPM or a Noteholder Person that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitizationagent, any other co-underwriters, underwriters or co-placement agents or co-initial purchasers of Securities issued in the Securitizationagents, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Parent will be liable in any such case under clauses (ii) or based upon the Covered Disclosure Information (iii) above only to the extent that any such Liabilities arise out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with (1) the written information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Parent, operating statements and rent rolls with respect to the Properties), Properties and (2) those portions of the Disclosure Documents furnished to and approved by Parent in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided the certificate furnished pursuant to Borrower for comment at least five clause (5i) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)above. This indemnity agreement will be in addition to any liability which Borrower any Relevant Party may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of Borrower, whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Any Securitization Indemnification Agreement shall provide that, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against BorrowerParent, notify Borrower Parent in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower Parent shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 8.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower Parent shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.28.2. If Any Securitization Indemnification Agreement shall provide that, if any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower Parent thereof, Borrower Parent shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After Any Securitization Indemnification Agreement shall provide that, after notice from any Borrower Parent to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower Parent shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both BorrowerParent, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to BorrowerParent, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Any Securitization Indemnification Agreement shall provide that, the Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower Parent is required hereunder to indemnify such Indemnified Person. Borrower Any Securitization Indemnification Agreement shall provide that, Parent shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(ed) Without Any Securitization Indemnification Agreement shall provide that, without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower Parent shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Parent shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceedings and such settlement requires no statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of each Indemnified Person. As Any Securitization Indemnification Agreement shall provide that, as long as Borrower Parent has complied with its obligations to defend and indemnify hereunder, Borrower Parent shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Parent (which consent shall not be unreasonably withheldwithheld or delayed).
(fe) Borrower agrees Any Securitization Indemnification Agreement shall provide that, Parent will agree that if any indemnification or reimbursement sought pursuant to described in this Section 9.2 8.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of described in this Section 9.28.2), then BorrowerParent, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerParent, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerParent, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding Any Securitization Indemnification Agreement shall provide that, notwithstanding the provisions of described in this Section 9.28.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees Parent will agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph Section 8.2(e) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(gf) Borrower agrees Any Securitization Indemnification Agreement shall provide that, Parent will agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 8.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Any Securitization Indemnification Agreement shall provide that, Parent will further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.28.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Altisource Residential Corp), Loan Agreement (Altisource Residential Corp)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "DISCLOSURE Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Lender shall provide Borrower adequate opportunity to review any such Disclosure Document is required and to be revised prior provide any such comment to the sale of all Securities, Lender as Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessiondeems necessary.
(b) Borrower agrees to provide, provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent specified by Lender and that each such information Disclosure Document, as it relates to or includes any Provided Information or any information regarding Borrower, Borrower Affiliates, the Properties, Borrowerthe Property Manager and all other aspects of the Loan, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying Lender(and for purposes of this SECTION 12.3, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section SECTION 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"LENDER GROUP"), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the Covered omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clause (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Information Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, appraisals, market studies, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower may otherwise have.
(c) In connection with Exchange Act filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (iiiii) agreeing to reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting Group or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question (which consent shall not this Section is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether or not any Indemnified Person is an actual or potential indemnifiable under this Section, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, Person
(i) Lender's and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Lender and Borrower agrees hereby agree that in no event shall the amount to it would not be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed equitable if the amount of the fees (such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 SECTION 12.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower or its agents, counsel and representatives may be included in Disclosure Documents in connection with the a Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, NRSROs and other advisory and service providers relating to the a Securitization. In the event that the any Disclosure Document is required to be revised prior to the sale of all SecuritiesSecurities in connection with a Securitization, Borrower will cooperate with Lender (or, if applicable, the holder of the Note applicable interest in the Loan) in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower hereby agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying indemnify Lender, each Noteholder, JPM (whether or not it is the Lender)UBSRESI, any Affiliate of JPM or a Noteholder UBSRESI that has filed any registration statement relating to the Securitization or has acted as the issuer, the sponsor or depositor in connection with the a Securitization, any Affiliate of JPM or a Noteholder UBSRESI that acts as an underwriter, placement agent or initial purchaser of the Securities issued in the connection with a Securitization, any other co-issuers, depositors, underwriters, co-placement agents or co-initial purchasers of the Securities issued in the connection with a Securitization, and each of their respective directors, officers, directors, partners, employees, representatives, agents and Affiliates Affiliates, and each Person or entity who that controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Securitization Indemnified PersonsParties”), ) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Securitization Indemnification Liabilities”)) to which any such Securitization Indemnified Person Party may become subject insofar as the Securitization Indemnification Liabilities arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information information provided to Lender by Borrower, any Affiliate of Borrower or arise out any of their respective agents, counsel or are based upon representatives, (ii) the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such information or necessary in order to make the statements in the Covered Disclosure Informationsuch information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing a breach of the representations and warranties made by Borrower in Section 3.1.34 of this Agreement. Borrower also agrees to reimburse each Securitization Indemnified Person Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified Person, as they are incurred, Party in connection with investigating or defending the Liabilities providedSecuritization Indemnification Liabilities. Borrower’s liability under this paragraph will be limited to any such liability, howeverobligation, loss, damage, penalty, action, judgment, suit, claim, cost or expense that Borrower shall have liability with respect to Liabilities arising arises out of or is based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurateProperty). This indemnity agreement provision will be in addition to any obligation or liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings and information therein or other reports containing comparable information that are required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, as it relates to the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager or any other aspect of the Loan, Borrower agrees to indemnify (i) indemnify the Securitization Indemnified Persons Parties for Securitization Indemnification Liabilities to which any such Securitization Indemnified Person Party may become subject insofar as the Securitization Indemnification Liabilities arise out of of, or are based upon any upon, an untrue statement or alleged untrue statement omission made in reliance upon, and in conformity with, information furnished to Lender by or on behalf of any material fact Borrower in connection with the Covered preparation of the Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light connection with the underwriting or closing of the circumstances under which they were madeLoan or any of the reports, not misleading statements or other information furnished by or on behalf of Borrower pursuant to the terms of this Agreement, including financial statements of Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse each Securitization Indemnified Person Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified Persons, as they are incurred, Party in connection with defending or investigating the Securitization Indemnification Liabilities.
(d) Promptly after receipt by an a Securitization Indemnified Person Party of notice of any claim or the commencement of any actionaction or suit, the such Securitization Indemnified Person Party shall, if a claim for indemnification in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that actionsuch action or suit; provided, however, that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have to an any Securitization Indemnified Person Party otherwise than under the provisions of this Section 9.2. If any such claim claim, action or action suit shall be brought against an any Securitization Indemnified PersonParty, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the such Securitization Indemnified PersonParty. After notice from any Borrower to an the applicable Securitization Indemnified Person Party of its Borrower’s election to assume the defense of such claim claim, action or actionsuit, Borrower shall not be liable to the such Securitization Indemnified Person Party for any legal or other costs and expenses subsequently incurred by the such Securitization Indemnified Person Party in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action or suit include both Borrower, on the one hand, and one or more Securitization Indemnified Persons Parties on the other hand, and an a Securitization Indemnified Person Party shall have reasonably concluded that there are any legal defenses available to it and/or other Securitization Indemnified Persons Parties that are different or in addition to those available to Borrower, the Securitization Indemnified Person Party or Persons Parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action or suit on behalf of such Securitization Indemnified Person Party or PersonsParties. The Securitization Indemnified Person Party shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Securitization Indemnified Person Party is seeking or intends to seek reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are related solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Securitization Indemnified PersonParty. Borrower shall not be liable for the costs and expenses of more than one (1) such separate counsel unless such a Securitization Indemnified Person Party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Securitization Indemnified PersonParty.
(e) Without the prior written consent of the applicable Securitization Indemnified Person in question Party (which consent shall not be unreasonably withheldwithheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Securitization Indemnified Person Party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such the applicable Securitization Indemnified Person Party reasonable prior notice thereof and shall have obtained an unconditional release of each Securitization Indemnified Person hereunder Party from all liability Securitization Indemnification Liabilities arising out of or relating to such claim, action, suit or proceedingsproceeding. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Securitization Indemnified Person Party without the consent of Borrower (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Securitization Indemnified Person Party harmless (with respect only to the Securitization Indemnification Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Securitization Indemnified PersonParty, on the other hand, shall contribute to the Securitization Indemnification Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Securitization Indemnified PersonParty, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) above but also the relative faults of Borrower, on the one hand, and all Securitization Indemnified PersonsParties, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party Person found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Securitization Indemnified Persons Parties collectively pursuant to this paragraph Section 9.2(f) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Securitization Indemnified Persons Parties in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Securitization Indemnified Person Party is a formal party to any lawsuitsclaim, claims action, suit or other proceedingsproceeding. Borrower further agrees that the Securitization Indemnified Persons Parties are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of Borrower and the Securitization Indemnified Persons and Borrower Parties under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Consolidated Tomoka Land Co), Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
Securitization Indemnification. (a) Borrower understands and Guarantor understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects with respect to Borrower, Guarantor, the extent in Borrower’s possessionProperty and the Operating Tenant.
(b) Borrower agrees and Guarantor agree to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, solely with respect to the Disclosure Documents, including, without limitationfactual contents thereof related to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralGuarantor, the Senior Mezzanine Collateral and/or Operating Company) (collectively with Tenant, the REIT, the Manager, the Franchisor, the Property and the Provided Information, the “Covered Disclosure Information”Information and such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇, each of its directors and each Person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above (but solely with respect to the Covered Disclosure Information factual contents thereof relating to the Loan, the Borrower, the Guarantor, the Operating Tenant, the REIT, the Manager, the Franchisor, and the Property and the Provided Information), or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the ▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees and Guarantor agree to indemnify (i) Lender, the Indemnified Persons ▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. The indemnifying party’s legal counsel shall control the Indemnified Persondefense of such action, except that no settlement or compromise shall be accepted or entered into which would bind any indemnified party unless such indemnified party has given its prior written consent thereto, which consent will not be unreasonably withheld. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party. Prior to the occurrence and the continuance of an Event of Default, in the event that any indemnified party wishes to enter into a settlement agreement in connection with such action which would give rise to an indemnified obligation of the indemnifying party hereunder and such indemnifying party does not consent to such settlement agreement, such indemnified party agrees not to enter into such settlement agreement provided the indemnifying party delivers evidence reasonably satisfactory to such indemnified party that the indemnifying party shall be able to satisfy its indemnification obligations under this Section in the event a judgment is rendered against the indemnifying party with respect to such action. In such event, the indemnifying party shall pay or, at the indemnified party’s option, reimburse it for the reasonable fees and expenses of its legal counsel and other professionals.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) ▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower, and Guarantor hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Guarantor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideUpon Lender’s reasonable request, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) Borrower has carefully certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the Disclosure Documents, including, without limitationLoan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, Borrower, Mortgage Borrowerthe IP, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationManagers, the “Covered Disclosure Information”) do Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM Credit Suisse (whether or not it is the Lender), any Affiliate of JPM Lender or a Noteholder Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM Lender or a Noteholder Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the Covered Disclosure Information Properties, the IP, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements in the Covered Disclosure Informationtherein, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Borrowers will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the any Disclosure Documents Document(s) or in connection with the underwriting or the closing of the Loan (including or in the ordinary course of the Loan, including, without limitation limitation, financial statements of Borrower and any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the Covered Disclosure InformationLoan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in the Covered any such Disclosure Information Document a material fact in any Loan Party’s actual knowledge, required to be stated therein or necessary in such Disclosure Document in order to make the statements in the Covered such Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties.
(d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of any claim or the commencement of any action, the such Indemnified Person shallwill, if a claim in respect thereof is to be made against BorrowerBorrowers under this Section 9.3, notify Borrower Borrowers in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that the failure omission to so notify Borrower shall Borrowers will not relieve it any Borrower from any liability which it any Borrower may have under the indemnification provisions of this Section 9.2 to any Indemnified Person hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes material prejudice to any liability which it may have to an Indemnified Person otherwise than under Borrower. In the provisions of this Section 9.2. If event that any such claim or action shall be is brought against an any Indemnified Person, and it shall notify Borrower notifies Borrowers of the commencement thereof, Borrower shall Borrowers will be entitled to participate therein and, to the extent that it wishesthey may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Person. After notice from any Borrower Borrowers to an such Indemnified Person of its election to assume the defense of under this Section 9.3, such claim or action, Borrower shall not be liable to the Indemnified Person shall pay for any legal or other expenses subsequently incurred by the such Indemnified Person in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, Indemnified Person and one or more Indemnified Persons on any Borrower and the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or in addition additional to those available to BorrowerBorrowers, the Indemnified Person or Persons Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or PersonsPerson(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Credit Suisse or Lender, as applicable (which consent shall not be unreasonably withheld), no Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Borrowers shall have given such Indemnified Person Credit Suisse or Lender, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower has Borrowers have complied with its their obligations to defend and indemnify hereunder, Borrower Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Borrowers (which consent shall not be unreasonably withheld).
(f) Borrower agrees Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.3), then BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerBorrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section 9.29.3, (A) no party Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Borrowers further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.3.
(h) The Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of the Indemnified Persons Borrowers and Borrower Lender under this Section 9.2 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), First Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, which are delivered to Borrower and Borrower Principal for review, an indemnification agreement certificate (iA) certifying that (AI) Borrower has and Borrower Principal have carefully examined such memorandum or prospectus or other document actually delivered by or on behalf of Lender (including any Investor or Rating Agency “term sheets” or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and any other sections reasonably requested by Lender (all such sections, collectively, the “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Disclosed Materials”), and (BII) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, best of Borrower, Mortgage ’s knowledge except as specifically identified by Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) Disclosed Materials do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsIssuer Group”), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “LiabilitiesUnderwriter Group”)) for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon the Disclosed Materials or any reports delivered by or on behalf of Borrower or Borrower Principal in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and, if Borrower or Borrower Principal do not provide the indemnification certificate, shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (iiiii) agreeing to reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating or defending the Liabilities Securities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of and Borrower Principal will be liable in any such case under clauses (i) or based upon the Covered Disclosure Information (ii) above only to the extent that (I) such Mortgagor Information is accurately set forth in such filings under the Exchange Act or is accurately disclosed to the holders of Securities (as applicable), and (II) any such Securities Liabilities arise out of or are based upon any such untrue statement or omission of a material fact made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Mortgagor Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, which are delivered to Borrower and Borrower Principal for review, an indemnification agreement certificate (iA) certifying that (AI) Borrower has and Borrower Principal have carefully examined such memorandum or prospectus or other document actually delivered by or on behalf of Lender (including any Investor or Rating Agency "term sheets" or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “"Special Considerations," and/or "Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " or similar sections, and all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and any other sections reasonably requested by Lender (all such sections, collectively, the "DISCLOSED MATERIALS"), and (BII) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, best of Borrower, Mortgage 's knowledge except as specifically identified by Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) Disclosed Materials do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization"ISSUER PERSON"), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"ISSUER GROUP"), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “Liabilities”)"UNDERWRITER GROUP") for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon the Disclosed Materials or any reports delivered by or on behalf of Borrower or Borrower Principal in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and, if Borrower or Borrower Principal do not provide the indemnification certificate, shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) the indemnified party's, Borrower's and Borrower Principal's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Senior Mezzanine Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Securitization Indemnification. (a) Borrower understands that certain information provided to Agent by Borrower and its agents, counsel and representatives relating to Borrower, Guarantor, their respective constituent owners, and the Properties (such information, whether provided pursuant to Section 9.1 above or otherwise in connection with the Loan, collectively, the “Borrower Provided Information”; which “Borrower Provided Information” shall be deemed not to include (i) an untrue statement of any material fact contained in the Borrower Provided Third Party Report, except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Third Party Report that the Borrower Provided Third Party Report contained such untrue statement of material fact and Borrower failed to alert Agent to same, or (ii) an omission of a material fact in the Borrower Provided Third Party Report (which omission shall be deemed material if such fact should have been included in the Borrower Provided Third Party Report in order to make the statements, in light of the circumstances under which they were made, not misleading), except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Information Third Party Report that the Borrower Provided Third Party Report reflected such omission and Borrower failed to alert Agent to same) may be included in Disclosure Documents preliminary and final disclosure documents in connection with the Securitization any Secondary Market Transaction, including a Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agenciesinvestment banking firms, NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to the any Secondary Market Transaction, including a Securitization. In the event Borrower also understands that the Disclosure Document is required to findings and conclusions of any third-party due diligence report obtained by the Agent, the Issuer or the Securitization placement agent or underwriter may be revised prior to made publicly available if required, and in the sale of all Securitiesmanner prescribed, Borrower will cooperate with the holder by Section 15E(s)(4)(A) of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate Exchange Act and complete in all material respects to the extent in Borrower’s possessionany rules promulgated thereunder.
(b) Borrower hereby agrees to provideindemnify Agent (and for purposes of this Section 9.2, in connection with Agent shall include the Securitizationinitial agent, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documentsinitial lenders, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” their successors and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitizationassigns, and each of their respective officers, officers and directors, partners, employees, representatives, agents and Affiliates ) and each Person or entity who controls any such Person the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Agent, Lenders, the Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based upon upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon Borrower Provided Information, (B) the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the Borrower Provided Information or necessary in order to make the statements in the Covered Disclosure Borrower Provided Information, in light of the circumstances under which they were made, not misleading misleading, or (C) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this Agreement (Full and Accurate Disclosure); except, in each case, that (I) Borrower’s obligation to indemnify for any Liabilities that arise in connection with a Disclosure Document that derives in part from information contained in Borrower Provided Information and in part from information either prepared by the Lender Group, the Issuer, the Underwriter Group or any other Person shall be limited to any untrue statement or omission of material fact contained in Borrower Provided Information known to Borrower that results directly from the Borrower Provided Information (or omission from the Borrower Provided Information) and (iiiII) agreeing Borrower shall have no responsibility for (w) any statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to (or requested changes to) in writing to Agent or that were derived from Borrower Provided Third Party Reports, (x) numbers which have been submitted by Borrower and adjusted by any Indemnified Person from those submitted by Borrower, to the extent of such adjustment, (y) third party reports, such as environmental and physical condition reports that do not constitute Borrower Provided Third Party Reports, and (z) any financial projections. Borrower also agrees to reimburse each Indemnified Person Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by such Indemnified PersonAgent, as they are incurredLenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities providedLiabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, howeveror is based upon, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in the Covered Disclosure Information in reliance upon upon, and in conformity with with, information furnished to Lender or such Noteholder Agent by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification provision will be in addition to any liability which Borrower may otherwise have. MoreoverBorrower acknowledges and agrees that any Person that is included in the Lender Group, the indemnification provided for in clauses (ii) and (iii) above Issuer and/or the Underwriter Group that is not a direct party to this Agreement shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required deemed to be stated therein or necessary in order a third-party beneficiary to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection this Agreement with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.2(b), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note Note, which is the subject of the prospective Securitization, in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, in connection with the any Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralPledge Agreements,” “Description of the Mezzanine Loans,Collateral” “The Operating Company,” and “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage BorrowerProperty, the Collateral, the Senior First Mezzanine Collateral Collateral, Mortgage Borrower, Borrower, the First Mezzanine Borrower and/or Operating Companythe Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM Lender (whether or not it is the LenderLender that is the holder of the Note which is the subject of the Securitization), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any actual losses, claims, damages, liabilities, costs or expenses (including, without limitation, reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any reasonable legal or other actual, out-of-pocket expenses incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any reasonable legal or other actual, out-of-pocket expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 12.1.6 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.212.1.6. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheld), conditioned or delayed, Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 12.1.6 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.212.1.6), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.212.1.6, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 12.1.6 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.212.1.6.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 12.1.6 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no not any obligation to act as depositor with respect to the Loan or any portion thereof which is the subject of any Securitization or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Second Mezzanine Loan Agreement, Second Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesProperty, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating Company) Loan (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM Nomura (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Nomura that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Nomura that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-co underwriters, co-co placement agents or co-co initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Nomura (which consent shall not be unreasonably withheld, conditioned or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Nomura reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In Notwithstanding the event that foregoing, Lender and its agents shall keep confidential such information specifically identified by Borrower as being subject to confidentiality provisions set forth in the Disclosure Document Management Agreement and, without limitation on the foregoing, no reference to Marriott Manager, any Affiliate of Marriott Manager, or any “Renaissance Trademark” (as defined in the Marriott Management Agreement) shall be made in any prospectus, private placement memorandum, offering circular or offering documentation related thereto issued which is required designed to be revised prior interest potential investors in debt or equity securities related to the sale of all SecuritiesProperty, Borrower will cooperate with the holder of the Note unless Marriott Manager has given its prior written approval to each such reference, which Marriott Manager may withhold in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate its sole and complete in all material respects to the extent in Borrower’s possessionabsolute discretion.
(b) Upon Lender’s reasonable request, Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the such Disclosure DocumentsDocuments specified by Lender and that to Borrower’s actual knowledge, includingeach such Disclosure Document, without limitationas it relates to Borrower, Borrower Affiliates, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” Property and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesManager, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact in Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), and Lender, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections known by Borrower to be untrue or arise out of or are based upon the Covered omission or alleged omission to state therein a material fact in Borrower’s actual knowledge, required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any reasonable legal or other reasonable expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrower in connection with the preparation of the Disclosure Information Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property. Notwithstanding anything to the contrary herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, Lender Group and the Underwriter Group. This indemnity agreement will be in addition to any liability which Borrower may otherwise have.
(c) In connection with Exchange Act Filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact in Borrower’s actual knowledge, required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities. Notwithstanding anything to the contrary contained herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, Lender Group and the Underwriter Group.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 9.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 9.2(b) or (which consent shall not c) is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (by underwriting discount i) Lender’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or otherwiseomission; and (iii) actually received by any other equitable considerations appropriate in the Indemnified Persons in connection with the closing of the Loan or the Securitizationcircumstances.
(gf) Borrower agrees that Subject to the indemnificationprovisions of Section 9.4 hereof, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (FelCor Lodging Trust Inc), Loan Agreement (FelCor Lodging Trust Inc)
Securitization Indemnification. (a) Borrower understands and Guarantor understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects with respect to Borrower, Guarantor, the extent in Borrower’s possessionProperty and the Operating Tenant.
(b) Borrower agrees and Guarantor agree to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, solely with respect to the Disclosure Documents, including, without limitationfactual contents thereof related to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralGuarantor, the Senior Mezzanine Operating Tenant, the REIT, the Manager, the Franchisor, the Property, the Collateral and/or Operating Company) (collectively with and the Provided Information, the “Covered Disclosure Information”Information and such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇, each of its directors and each Person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above (but solely with respect to the Covered Disclosure Information factual contents thereof relating to the Loan, the Borrower, the Guarantor, the Operating Tenant, the REIT, the Manager, the Franchisor, the Property, the Collateral and the Provided Information), or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the ▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees and Guarantor agree to indemnify (i) Lender, the Indemnified Persons ▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. The indemnifying party’s legal counsel shall control the Indemnified Persondefense of such action, except that no settlement or compromise shall be accepted or entered into which would bind any indemnified party unless such indemnified party has given its prior written consent thereto, which consent will not be unreasonably withheld. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party. Prior to the occurrence and the continuance of an Event of Default, in the event that any indemnified party wishes to enter into a settlement agreement in connection with such action which would give rise to an indemnified obligation of the indemnifying party hereunder and such indemnifying party does not consent to such settlement agreement, such indemnified party agrees not to enter into such settlement agreement provided the indemnifying party delivers evidence reasonably satisfactory to such indemnified party that the indemnifying party shall be able to satisfy its indemnification obligations under this Section in the event a judgment is rendered against the indemnifying party with respect to such action. In such event, the indemnifying party shall pay or, at the indemnified party’s option, reimburse it for the reasonable fees and expenses of its legal counsel and other professionals.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from from
(i) ▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other party who is not also found liable for such fraudulent misrepresentationequitable considerations appropriate in the circumstances. Lender, Borrower, and (B) Borrower agrees Guarantor hereby agree that in no event shall the amount to it would not be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed equitable if the amount of the fees (such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Guarantor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp), Mezzanine Loan Agreement (Meristar Hospitality Corp)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the any Assisted Securitization and may also be included in filings with the Securities and Exchange Commission SEC pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the any Assisted Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note each Initial Lender in updating the Disclosure Document in connection with an Assisted Securitization by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the any Assisted Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, if applicable and without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and/or such sections in Disclosure Documents under different headings and containing information provided by the Borrower relating to the Properties, Borrower, Principal, Holdings, the Operating Company and the Loan and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage BorrowerPrincipal, Holdings, the Collateral, Operating Company and the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying the applicable Initial Lender, each Noteholder, JPM (whether or not it is the Lender), and any Affiliate of JPM or a Noteholder such Initial Lender that has filed any registration statement relating to the an Assisted Securitization or has acted as the sponsor or depositor in connection with the an Assisted Securitization, any Affiliate of JPM or a Noteholder the applicable Initial Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Assisted Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Assisted Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject (whether or not arising from any third party claim) insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to the applicable Initial Lender or such Noteholder the Noteholders by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Initial Lender in writing and Initial Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 9.10 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.29.10. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.10 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.10), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.29.10, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.10 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.10.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 9.10 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) . Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideUpon Lender’s reasonable request, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) Borrower has carefully certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the Disclosure Documents, including, without limitationLoan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, Borrowerthe IP, Mortgage Borrowerthe First Mezzanine Collateral, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationManagers, the “Covered Disclosure Information”) do Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM Credit Suisse (whether or not it is the Lender), any Affiliate of JPM Lender or a Noteholder Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM Lender or a Noteholder Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the Covered Disclosure Information Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements in the Covered Disclosure Informationtherein, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Borrowers will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the any Disclosure Documents Document(s) or in connection with the underwriting or the closing of the Loan (including or in the ordinary course of the Loan, including, without limitation limitation, financial statements of Borrower and any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the Covered Disclosure InformationLoan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in the Covered any such Disclosure Information Document a material fact in any Loan Party’s actual knowledge, required to be stated therein or necessary in such Disclosure Document in order to make the statements in the Covered such Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties.
(d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of any claim or the commencement of any action, the such Indemnified Person shallwill, if a claim in respect thereof is to be made against BorrowerBorrowers under this Section 9.3, notify Borrower Borrowers in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that the failure omission to so notify Borrower shall Borrowers will not relieve it any Borrower from any liability which it any Borrower may have under the indemnification provisions of this Section 9.2 to any Indemnified Person hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes material prejudice to any liability which it may have to an Indemnified Person otherwise than under Borrower. In the provisions of this Section 9.2. If event that any such claim or action shall be is brought against an any Indemnified Person, and it shall notify Borrower notifies Borrowers of the commencement thereof, Borrower shall Borrowers will be entitled to participate therein and, to the extent that it wishesthey may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Person. After notice from any Borrower Borrowers to an such Indemnified Person of its election to assume the defense of under this Section 9.3, such claim or action, Borrower shall not be liable to the Indemnified Person shall pay for any legal or other expenses subsequently incurred by the such Indemnified Person in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, Indemnified Person and one or more Indemnified Persons on any Borrower and the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or in addition additional to those available to BorrowerBorrowers, the Indemnified Person or Persons Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or PersonsPerson(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Credit Suisse or Lender, as applicable (which consent shall not be unreasonably withheld), no Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Borrowers shall have given such Indemnified Person Credit Suisse or Lender, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower has Borrowers have complied with its their obligations to defend and indemnify hereunder, Borrower Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Borrowers (which consent shall not be unreasonably withheld).
(f) Borrower agrees Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.3), then BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerBorrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section 9.29.3, (A) no party Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Borrowers further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.3.
(h) The Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of the Indemnified Persons Borrowers and Borrower Lender under this Section 9.2 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Securitization Indemnification. (a) Borrower understands Lender shall be permitted to share all Provided Information with any actual or potential purchaser, transferee, assignee, Servicer, participant or Investor in a Secondary Market Transaction, Rating Agencies, investment banking firms, accounting firms, law firms and other third-party advisory firms involved with the Loan Documents or the applicable Secondary Market Transaction. It is understood that certain of the Provided Information may ultimately be included in incorporated into any offering document (“Disclosure Documents in connection with Document”) for the Securitization Secondary Market Transaction, and also may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and thus any actual or provided potential purchaser, transferee, assignee, Servicer, participant or made available to investors Investor in a Secondary Market Transaction may also see some or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale all of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit . Subject to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying LenderSection 13.20 hereof, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, Borrower and each of their respective officers, directors, partners, employees, representatives, agents Guarantor irrevocably waives any and Affiliates and each Person or entity who controls all rights it may have under any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses applicable Laws (including, without limitation, legal fees and expenses for enforcement any right of these obligations (collectively, the “Liabilities”)privacy) to prohibit such disclosure. Lender and all of the aforesaid third-party advisors and professional firms shall be entitled to rely on the information supplied by, or on behalf of, Borrower or any Guarantor. Borrower and each Guarantor hereby indemnify the Underwriter Group as to any Liabilities to which any such Indemnified Person the Underwriter Group may become subject in connection with any Disclosure Document and/or any Covered Rating Agency Information, in each case, insofar as the such Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Borrower Provided Information or and/or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact in the Borrower Provided Information required to be stated therein or necessary in order to make the statements in the applicable Disclosure Document and/or Covered Disclosure Information, Rating Agency Information in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities misleading; provided, however, that Borrower such indemnity shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only apply to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with the Borrower Provided Information or information (other than the Property Information unless Borrower has actual knowledge that any such Property Information is inaccurate in any material respect) supplied by, or on behalf of, Borrower or any Guarantor or any Affiliate of Borrower and furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the any Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Loan. This The aforesaid indemnity agreement will be in addition to any liability which Borrower or Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such indemnification shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except only be effective to the extent that it has been materially prejudiced by such failure andLender accurately states the information supplied by, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereofon behalf of, Borrower shall be entitled to participate therein andor any Guarantor, to or any Affiliate of Borrower or any Guarantor, in the extent that it wishes, assume Disclosure Document. Lender may publicize the defense thereof with counsel reasonably satisfactory to existence of the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person Debt in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable marketing for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationSecondary Market Transaction.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.), Loan Agreement (Cole Credit Property Trust Iv, Inc.)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the SecuritizationProperties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has and Borrower Principal have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Disclosure DocumentsProperties and/or the Loan), includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” or similar sections, and (B) such all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge except as identified by Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) such sections (collectively with the Provided Informationand any other sections reasonably requested by Lender (collectively, the “Covered Disclosure InformationDisclosed Materials”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsIssuer Group”), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “LiabilitiesUnderwriter Group”)) for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties but excluding any Projections made in good faith by Borrower. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, preliminary Disclosure Information Documents shall not inure to the benefit of any member of the Issuer Group or the Underwriting Group (or any person controlling such Issuer Group or Underwriting Group) from whom the Person asserting any such Loss purchased any securities which are the subject thereof if Borrower shall sustain the burden of proving that any such Loss resulted from the fact that such Person was not provided with a copy of the final Disclosure Documents at or prior to the written confirmation of the sale of such securities to such Person and the Loss resulted from untrue statement or misstatement contained in, or omission from, the preliminary Disclosure Documents that were corrected in the final Disclosed Documents. The indemnity set forth in this Section 13.5 shall not apply with respect to any Securities Liabilities that arise out of or are based upon any untrue statement, misstatement or omission or any alleged untrue statement, misstatement or omission to state in the Disclosed Materials a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading, if such untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission related to statements and information that do not accurately reflect the Disclosed Materials or any corrections or updates to the Disclosed Materials which were provided prior to the final Disclosure Documents to investors and neither Borrower nor Borrower’s Principal has been given reasonable opportunity to review the proposed filing under the Securities Act or Exchange Act and to correct such untrue statement, misstatement or omission.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Capital Lodging), Mezzanine Loan Agreement (Capital Lodging)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the SecuritizationProperties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency "term sheets" or presentations relating to the Disclosure DocumentsProperties and/or the Loan), includingas applicable, without limitationrelating to Borrower, Borrower Principal, their Affiliates, the sections entitled “Risk Factors,” “Special Considerations,” “Description of Loan, the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” Loan Documents and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, and any risks or special considerations relating thereto (the "REVIEWED SECTIONS"), and that, to the best of Borrower, Mortgage Borrower's knowledge, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) Reviewed Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization"ISSUER PERSON"), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"ISSUER GROUP"), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “Liabilities”)"UNDERWRITER GROUP") for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information Reviewed Sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the Reviewed Sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or necessary in order to make the statements in the Covered Disclosure Information, Reviewed Sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and Issuer Group in connection with investigating or defending the Liabilities Securities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that (i) any such Securities Liabilities arise out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the Disclosure Documents memorandum or prospectus or other document (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), Properties and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was (ii) Lender or such Issuer Group or Investor Group did not provided to Borrower for comment at least five (5) Business Days prior to its dissemination have any actual independent knowledge of such untrue statement or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)omission. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate; provided, however, neither Borrower nor Borrower Principal shall not be liable to the extent that any such Securities Liabilities relate solely to errors and omissions which Borrower expressly identified to Lender and remained uncorrected or with respect to any information not contained in the Reviewed Sections.
(c) In connection with filings under the Exchange Act (if any)or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the Indemnified Persons Issuer Group and the Underwriter Group for Liabilities Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the LiabilitiesSecurities Liabilities provided, however, Borrower shall not be liable to the extent that any such Securities Liabilities relate solely to errors and omissions which Borrower expressly identified to Lender and remained uncorrected or with respect to any information not contained in the Reviewed Sections or as to which Lender or such Issuer Group or Investor Group had actual independent knowledge of such untrue statement, error or omission.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified 100 party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) the indemnified party's, Borrower's and Borrower Principal's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Corporate Property Associates 15 Inc), Loan Agreement (Corporate Property Associates 16 Global Inc)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideUpon Lender’s reasonable request, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) Borrower has carefully certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the Disclosure Documents, including, without limitationLoan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, Borrowerthe IP, Mortgage Borrowerthe First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationManagers, the “Covered Disclosure Information”) do Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM Credit Suisse (whether or not it is the Lender), any Affiliate of JPM Lender or a Noteholder Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM Lender or a Noteholder Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the Covered Disclosure Information Properties, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements in the Covered Disclosure Informationtherein, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Borrowers will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the any Disclosure Documents Document(s) or in connection with the underwriting or the closing of the Loan (including or in the ordinary course of the Loan, including, without limitation limitation, financial statements of Borrower and any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the Covered Disclosure InformationLoan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in the Covered any such Disclosure Information Document a material fact in any Loan Party’s actual knowledge, required to be stated therein or necessary in such Disclosure Document in order to make the statements in the Covered such Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties.
(d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of any claim or the commencement of any action, the such Indemnified Person shallwill, if a claim in respect thereof is to be made against BorrowerBorrowers under this Section 9.3, notify Borrower Borrowers in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that the failure omission to so notify Borrower shall Borrowers will not relieve it any Borrower from any liability which it any Borrower may have under the indemnification provisions of this Section 9.2 to any Indemnified Person hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes material prejudice to any liability which it may have to an Indemnified Person otherwise than under Borrower. In the provisions of this Section 9.2. If event that any such claim or action shall be is brought against an any Indemnified Person, and it shall notify Borrower notifies Borrowers of the commencement thereof, Borrower shall Borrowers will be entitled to participate therein and, to the extent that it wishesthey may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Person. After notice from any Borrower Borrowers to an such Indemnified Person of its election to assume the defense of under this Section 9.3, such claim or action, Borrower shall not be liable to the Indemnified Person shall pay for any legal or other expenses subsequently incurred by the such Indemnified Person in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, Indemnified Person and one or more Indemnified Persons on any Borrower and the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or in addition additional to those available to BorrowerBorrowers, the Indemnified Person or Persons Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or PersonsPerson(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Credit Suisse or Lender, as applicable (which consent shall not be unreasonably withheld), no Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Borrowers shall have given such Indemnified Person Credit Suisse or Lender, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower has Borrowers have complied with its their obligations to defend and indemnify hereunder, Borrower Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Borrowers (which consent shall not be unreasonably withheld).
(f) Borrower agrees Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.3), then BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerBorrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section 9.29.3, (A) no party Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Borrowers further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.3.
(h) The Subject to the provisions of Section 9.4(a) hereof, the liabilities and obligations of the Indemnified Persons Borrowers and Borrower Lender under this Section 9.2 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Third Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.this
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information and the Required Records may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including a prospectus or private placement memorandum (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Provided Information or Required Reports for inclusion or summary in the Disclosure Document by providing all current information pertaining to Borrower and the Properties necessary to keep the Disclosure Document accurate and complete in all material respects with respect to the extent in Borrower’s possessionsuch matters.
(b) In connection with each of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, Borrower agrees to provide, in connection with the Securitization, provide an indemnification agreement certificate:
(iA) certifying that (A) Borrower has carefully examined those portions of such memorandum or prospectus, as applicable, pertaining to Borrower, the Disclosure Documents, including, without limitation, Properties and the Loan including applicable portions of the sections entitled “Risk Factors,” “"Special Considerations,” “", "Description of the Collateral,” “Mortgages", "Description of the Mezzanine Loans,” “Mortgage Loans and Mortgaged Properties", "The Operating Company,” “Manager", "The Borrower” " and “"Certain Legal Aspects of the Mezzanine Loans,” Mortgage Loan", and (B) such sections (and such any other information in the Disclosure Documents (sections reasonably requested and pertaining to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralProperties or the Loan) to the best of Borrower's knowledge, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.;
Appears in 2 contracts
Sources: Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: First Mezzanine Loan Agreement (Harrahs Entertainment Inc), First Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower or its agents, counsel and representatives may be included in Disclosure Documents in connection with the a Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, NRSROs and other advisory and service providers relating to the a Securitization. In the event that the any Disclosure Document is required to be revised prior to the sale of all SecuritiesSecurities in connection with a Securitization, Borrower will cooperate with Lender (or, if applicable, the holder of the Note applicable interest in the Loan) in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower hereby agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying indemnify Lender, each Noteholder, JPM (whether or not it is the Lender)UBSRESI, any Affiliate of JPM or a Noteholder UBSRESI that has filed any registration statement relating to the Securitization or has acted as the issuer, the sponsor or depositor in connection with the a Securitization, any Affiliate of JPM or a Noteholder UBSRESI that acts as an underwriter, placement agent or initial purchaser of the Securities issued in the connection with a Securitization, any other co-issuers, depositors, underwriters, co-placement agents or co-initial purchasers of the Securities issued in the connection with a Securitization, and each of their respective directors, officers, directors, partners, employees, representatives, agents and Affiliates Affiliates, and each Person or entity who that controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Securitization Indemnified PersonsParties”), ) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Securitization Indemnification Liabilities”)) to which any such Securitization Indemnified Person Party may become subject insofar as the Securitization Indemnification Liabilities arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information information provided to Lender by Borrower, any Affiliate of Borrower or arise out any of their respective agents, counsel or are based upon representatives, (ii) the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such information or necessary in order to make the statements in the Covered Disclosure Informationsuch information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing a breach of the representations and warranties made by Borrower in Section 3.1.34 of this Agreement. Borrower also agrees to reimburse each Securitization Indemnified Person Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified Person, as they are incurred, Party in connection with investigating or defending the Liabilities providedSecuritization Indemnification Liabilities. Borrower’s liability under this paragraph will be limited to any such liability, howeverobligation, loss, damage, penalty, action, judgment, suit, claim, cost or expense that Borrower shall have liability with respect to Liabilities arising arises out of or is based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurateProperty). This indemnity agreement provision will be in addition to any obligation or liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act Filings and information therein or other reports containing comparable information that are required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, as it relates to the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager (if any)) or any other aspect of the Loan, Borrower agrees to indemnify (i) indemnify the Securitization Indemnified Persons Parties for Securitization Indemnification Liabilities to which any such Securitization Indemnified Person Party may become subject insofar as the Securitization Indemnification Liabilities arise out of of, or are based upon any upon, an untrue statement or alleged untrue statement omission made in reliance upon, and in conformity with, information furnished to Lender by or on behalf of any material fact Borrower in connection with the Covered preparation of the Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light connection with the underwriting or closing of the circumstances under which they were madeLoan or any of the reports, not misleading statements or other information furnished by or on behalf of Borrower pursuant to the terms of this Agreement, including financial statements of Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse each Securitization Indemnified Person Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified Persons, as they are incurred, Party in connection with defending or investigating the Securitization Indemnification Liabilities.
(d) Promptly after receipt by an a Securitization Indemnified Person Party of notice of any claim or the commencement of any actionaction or suit, the such Securitization Indemnified Person Party shall, if a claim for indemnification in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that actionsuch action or suit; provided, however, that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have to an any Securitization Indemnified Person Party otherwise than under the provisions of this Section 9.2. If any such claim claim, action or action suit shall be brought against an any Securitization Indemnified PersonParty, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the such Securitization Indemnified PersonParty. After notice from any Borrower to an the applicable Securitization Indemnified Person Party of its Borrower’s election to assume the defense of such claim claim, action or actionsuit, Borrower shall not be liable to the such Securitization Indemnified Person Party for any legal or other costs and expenses subsequently incurred by the such Securitization Indemnified Person Party in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action or suit include both Borrower, on the one hand, and one or more Securitization Indemnified Persons Parties on the other hand, and an a Securitization Indemnified Person Party shall have reasonably concluded that there are any legal defenses available to it and/or other Securitization Indemnified Persons Parties that are different or in addition to those available to Borrower, the Securitization Indemnified Person Party or Persons Parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action or suit on behalf of such Securitization Indemnified Person Party or PersonsParties. The Securitization Indemnified Person Party shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Securitization Indemnified Person Party is seeking or intends to seek reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are related solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Securitization Indemnified PersonParty. Borrower shall not be liable for the costs and expenses of more than one (1) such separate counsel unless such a Securitization Indemnified Person Party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Securitization Indemnified PersonParty.
(e) Without the prior written consent of the applicable Securitization Indemnified Person in question Party (which consent shall not be unreasonably withheldwithheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Securitization Indemnified Person Party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such the applicable Securitization Indemnified Person Party reasonable prior notice thereof and shall have obtained an unconditional release of each Securitization Indemnified Person hereunder Party from all liability Securitization Indemnification Liabilities arising out of or relating to such claim, action, suit or proceedingsproceeding. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Securitization Indemnified Person Party without the consent of Borrower (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Securitization Indemnified Person Party harmless (with respect only to the Securitization Indemnification Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Securitization Indemnified PersonParty, on the other hand, shall contribute to the Securitization Indemnification Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Securitization Indemnified PersonParty, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) above but also the relative faults of Borrower, on the one hand, and all Securitization Indemnified PersonsParties, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party Person found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Securitization Indemnified Persons Parties collectively pursuant to this paragraph Section 9.2(f) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Securitization Indemnified Persons Parties in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Securitization Indemnified Person Party is a formal party to any lawsuitsclaim, claims action, suit or other proceedingsproceeding. Borrower further agrees that the Securitization Indemnified Persons Parties are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of Borrower and the Securitization Indemnified Persons and Borrower Parties under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Ionis Pharmaceuticals Inc), Loan Agreement (Ionis Pharmaceuticals Inc)
Securitization Indemnification. (a) Subject to Section 9.1.1(d), Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In Subject to Section 9.1.1(d), in the event that the any Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will shall cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees Subject to Section 9.1.1(d), the Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine Loans,” “The Operating CompanyMortgage Loan and Mortgaged Properties,” “The Borrower,” and “The Master Tenants,” “The Third Party Subleases”, “The Master Leases,” “The Lineage Subtenants”, the “Lineage Subleases”, “Certain Legal Aspects of the Mezzanine Loans,Mortgage Loan” and “the Ground Leases” (or similar entitled sections), and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrowerany Master Tenant, any Lineage Subtenant, Sole Member, Guarantor and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), Parties for any losses, claims, damages, liabilities, liabilities or reasonable and documented costs or and expenses (including, without limitation, reasonable and documented legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person Party may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person Party for any reasonable and documented legal or other expenses incurred by such Indemnified PersonParty, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any). For purposes of this Agreement, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information shall not include, (v) any information subject to a material fact required confidentiality agreement as set forth in Section 9.1.1(d) above, other than ICE Disclosure Detail, (w) any untrue statements or omissions about which ▇▇▇▇▇▇▇▇ has provided notice in writing (which may be by email to be stated therein or necessary in order to make the statements in the Covered Disclosure Information▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇.▇▇▇), in light ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇), ▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇.▇▇▇▇▇▇▇@▇▇.▇▇▇), ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq. (▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq. (▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇)) and such other individuals that any of the circumstances under which they were madeforegoing may designate via email to ▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇@▇▇▇-▇▇▇▇▇.▇▇▇), not misleading ▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (ii▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇.▇▇▇)) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating prior to the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing distribution of the claim Disclosure Document; provided that such notice is not inconsistent with (and the applicable comment, correction or the commencement objection by Borrower is consistent with) information provided by or on behalf of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person Lender in connection with the defense thereof except as provided in the following sentence; providedLoan, however, if the defendants in (x) any such action include both Borrower, on the one hand, and one statements which are derived from third party information not prepared by or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person Borrower, any Master Tenant, Sole Member or Persons. The Indemnified Person shall instruct its counsel Guarantor with respect to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records Borrower has provided notice to substantiate that such counsel’s fees and disbursements are solely related Lender in writing prior to the defense distribution of a claim for the Disclosure Document that Borrower is unable to verify, (y) any Disclosure Document (or any provisions thereof) with respect to which Borrower is required hereunder not provided a reasonable opportunity to indemnify review (unless such Indemnified Person. Disclosure Document (or such provisions thereof) is consistent in all material respects with information provided to Lender by or on behalf of Borrower), it being acknowledged and agreed that Borrower shall not be liable for the expenses in all events have two (2) Business Days to review each draft of more than one any Disclosure Document (1or any provision thereof), or (z) such separate counsel unless such any misstatements or omissions resulting from any Indemnified Person shall have reasonably concluded that there may be legal defenses available Party’s failure to it that are different from accurately transcribe written information delivered to Lender by or additional on behalf of Borrower or failure to those available include information provided to another Indemnified Person.
(e) Without the Lender by Borrower prior consent to distribution of the Indemnified Person in question (which consent shall not be unreasonably withheld)applicable Disclosure Document, Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given has been provided a reasonable opportunity to review such Indemnified Person reasonable prior notice thereof Disclosure Documents (or the applicable portions thereof) and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out failed to notify Lender of such claim, action, suit misstatements or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld)omissions.
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “"Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “" "The Operating CompanyManager,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether Lender hereunder shall include its officers and directors) or not it is the Lender), any Affiliate of JPM or a Noteholder Lender ("Lehman") that has filed any the registration statement relating to the Securitization or has acted as ▇▇▇▇▇▇tization (the sponsor or depositor in connection with the Securitization"Registration Statement"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"Lehman Group"), and Lehman, each of its directors and each Person w▇▇ ▇▇▇trols Lehman w▇▇▇▇▇ the meaning of Section 15 of the Securities Act and S▇▇▇▇▇▇ 20 of the Exchange Act (collectively, the "Underwriter Group") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “"Liabilities”)") to which any such Indemnified Person Lender, the Lehman Group or the Underwriter Group may become subject insofar as the Liabilities ▇▇▇ ▇iabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Lehman Group and the Underwriter Group for any legal or other expenses expen▇▇▇ ▇▇asonably incurred by such Indemnified Person, as they are incurred, Lender and Lehman in connection with investigating or defending the Liabilities providedLiabilitie▇; ▇▇▇vided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (provided and shall be applicable based on information previously provided by Borrower or its Affiliates if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, does not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under provide the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personcertificate.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Glimcher Realty Trust), Loan Agreement (Glimcher Realty Trust)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Approved Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent such information is in Borrower’s possessionpossession or control.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Covered Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Information and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitizationagent, any other co-underwriters, underwriters or co-placement agents or co-initial purchasers of Securities issued in the Securitizationagents, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (ii) or based upon the Covered Disclosure Information (iii) above only to the extent that any such Liabilities arise out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with (1) the written information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), Properties and (2) those portions of the Disclosure Documents furnished to and approved by Borrower in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided the certificate furnished pursuant to Borrower for comment at least five clause (5i) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)above. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of Borrower, whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 8.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.28.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(ed) Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceedings and such settlement requires no statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of each Indemnified Person. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheldwithheld or delayed).
(fe) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 8.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.28.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.28.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph Section 8.2(e) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(gf) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 8.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.28.2.
(hg) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 8.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(ih) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (American Homes 4 Rent), Loan Agreement (American Homes 4 Rent)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the such Disclosure DocumentsDocuments specified by Lender and that to Borrower’s actual knowledge each such Disclosure Document, includingas it relates to Borrower, without limitationBorrower Affiliates, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” Property and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do Manager does not contain any untrue statement of a material fact or omit to state a material fact in Borrower’s actual knowledge, necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co. (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, compensatory damages (but not consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections known by Borrower to be untrue or arise out of or are based upon the Covered omission or alleged omission to state therein a material fact in Borrower’s actual knowledge, required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and/or the Underwriter Group for any legal or other reasonable expenses reasonably incurred by Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrower in connection with the preparation of the Disclosure Information Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property. Notwithstanding anything to the contrary contained herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group. This indemnity agreement will be in addition to any liability which Borrower may otherwise have.
(c) In connection with Exchange Act Filings, Borrower shall (i) indemnify Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact in Borrower’s actual knowledge required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities. Notwithstanding anything to the contrary contained herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be he made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered, to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 9.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 9.2(b) or (which consent shall not c) is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(by underwriting discount i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or otherwiseomission; and (iii) actually received by any other equitable considerations appropriate in the Indemnified Persons in connection with the closing of the Loan or the Securitizationcircumstances.
(gf) Borrower agrees that Subject to the indemnificationprovisions of Section 11.22 hereof, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, the Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus, includingas applicable, including without limitation, the sections entitled “"Risk Factors,” “Special Considerations,” “" "Description of the CollateralMortgage Loans and Mortgaged Property,” “Description of the Mezzanine Loans" "The Manager,” “The Operating Company,” “" and "The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (" only as they relate to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralLoan, the Senior Mezzanine Collateral and/or Operating Company) (collectively with Loan Documents, and the Provided InformationProperty and such sections relating to Borrower, the “Covered Disclosure Information”Loan, the Loan Documents, and the Property (and any other sections reasonably related thereto) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this SECTION 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any Affiliate the affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇") that has filed any the registration statement relating to the Securitization or has acted as securitization (the sponsor or depositor in connection with "REGISTRATION STATEMENT"), each of its directors, each of its officers who have signed the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, Registration Statement and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person person or entity who controls any such Person the affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"▇▇▇▇▇▇ GROUP"), and ▇▇▇▇▇▇, each of its directors and each person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and ▇▇▇▇▇▇ in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five Property (5) Business Days prior to its dissemination or on which Borrower provided comments knew, in the normal course of owning and operating the Property to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accuratebe untrue, inaccurate or incomplete). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Urban Shopping Centers Inc), Loan Agreement (Urban Shopping Centers Inc)
Securitization Indemnification. (a) Borrower understands that certain information provided to Agent by Borrower and their agents, counsel and representatives relating to Mortgage Borrower, Borrower, Guarantor, their respective constituent owners, and the Properties (such information, whether provided pursuant to Section 9.1 above or otherwise in connection with the Loan, collectively, the “Borrower Provided Information”; which “Borrower Provided Information” shall be deemed not to include (i) an untrue statement of any material fact contained in Borrower Provided Third Party Report, except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided Borrower Provided Third Party Report that Borrower Provided Third Party Report contained such untrue statement of material fact and Borrower failed to alert Agent to same, or (ii) an omission of a material fact in Borrower Provided Third Party Report (which omission shall be deemed material if such fact should have been included in Borrower Provided Third Party Report in order to make the statements, in light of the circumstances under which they were made, not misleading), except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided Borrower Provided Information Third Party Report that Borrower Provided Third Party Report reflected such omission and Borrower failed to alert Agent to same) may be included in Disclosure Documents preliminary and final disclosure documents in connection with the Securitization any Secondary Market Transaction, including a Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agenciesinvestment banking firms, NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to the any Secondary Market Transaction, including a Securitization. In the event Borrower also understands that the Disclosure Document is required to findings and conclusions of any third-party due diligence report obtained by the Agent, the Issuer or the Securitization placement agent or underwriter may be revised prior to made publicly available if required, and in the sale of all Securitiesmanner prescribed, Borrower will cooperate with the holder by Section 15E(s)(4)(A) of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate Exchange Act and complete in all material respects to the extent in Borrower’s possessionany rules promulgated thereunder.
(b) Borrower hereby agrees to provideindemnify Agent (and for purposes of this Section 9.2, in connection with Agent shall include the Securitizationinitial agent, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documentsinitial lenders, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” their successors and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitizationassigns, and each of their respective officers, officers and directors, partners, employees, representatives, agents and Affiliates ) and each Person or entity who controls any such Person the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Agent, Lenders, the Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based upon upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon Borrower Provided Information, (B) the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in Borrower Provided Information or necessary in order to make the statements in the Covered Disclosure Borrower Provided Information, in light of the circumstances under which they were made, not misleading misleading, or (C) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this Agreement (Full and Accurate Disclosure); except, in each case, that (I) Borrower’s obligation to indemnify for any Liabilities that arise in connection with a Disclosure Document that derives in part from information contained in Borrower Provided Information and in part from information either prepared by the Lender Group, the Issuer, the Underwriter Group or any other Person shall be limited to any untrue statement or omission of material fact contained in Borrower Provided Information known to Borrower that results directly from the Borrower Provided Information (or omission from the Borrower Provided Information) and (iiiII) agreeing Borrower shall have no responsibility for (w) any statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to (or requested changes to) in writing to Agent or that were derived from Borrower Provided Third Party Reports, (x) numbers which have been submitted by Borrower and adjusted by any Indemnified Person from those submitted by Borrower, to the extent of such adjustment, (y) third party reports, such as environmental and physical condition reports that do not constitute Borrower Provided Third Party Reports, and (z) any financial projections. Borrower also agrees to reimburse each Indemnified Person Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by such Indemnified PersonAgent, as they are incurredLenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities providedLiabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, howeveror is based upon, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in the Covered Disclosure Information in reliance upon upon, and in conformity with with, information furnished to Lender or such Noteholder Agent by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower, Mortgage Borrower and Guarantor, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification provision will be in addition to any liability which Borrower may otherwise have. MoreoverBorrower acknowledges and agrees that any Person that is included in the Lender Group, the indemnification provided for in clauses (ii) and (iii) above Issuer and/or the Underwriter Group that is not a direct party to this Agreement shall be effective whether or not an indemnification agreement described in clause (i) above is provideddeemed to be a third-party beneficiary to this Agreement with respect to this Section 9.2(b).
(c) In connection with filings under the any Exchange Act (if any)Filing or other reports containing comparable information that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to indemnify (i) indemnify Agent, Lenders, the Indemnified Persons Lender Group, the Issuer and the Underwriter Group for Liabilities to which any such Indemnified Person Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based upon any upon, an alleged untrue statement or alleged omission or an untrue statement or omission made in reliance upon, and in conformity with, Borrower Provided Information furnished to Agent by or on behalf of any material fact Borrower in connection with the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light preparation of the circumstances under which they were madeDisclosure Document or in connection with the underwriting or closing of the Loan, not misleading including financial statements of Borrower, Mortgage Borrower or Guarantor, operating statements and rent rolls with respect to any Property, and (ii) reimburse each Indemnified Person Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by such Indemnified PersonsAgent, as they are incurredLenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person such indemnified party pursuant to the immediately preceding sentence of its election to assume the defense of this Section 9.2(d), such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) any other indemnified party. Without the prior written consent of the Indemnified Person in question Agent (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no indemnifying party shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the indemnifying party shall have given such Indemnified Person Agent reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings. As long , and such settlement requires no statement as Borrower has complied with its obligations to, or an admission of, fault, culpability or a failure to defend and indemnify hereunderact, Borrower shall not be liable for any settlement made by any Indemnified Person without or on behalf of the consent of Borrower (which consent shall not be unreasonably withheld)indemnified party.
(fe) Borrower agrees that if any indemnification In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.2(b) or reimbursement sought pursuant to this Section 9.2 (c) is finally judicially determined to be unavailable for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or is insufficient action in respect thereof) referred to hold any Indemnified Person harmless therein which would otherwise be indemnifiable under Section 9.2(b) or (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the Issuer’s and applicable Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Agent and Borrower agrees hereby agree that in it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. In no event shall Borrower be required to indemnify an indemnified party with respect to any matter to the amount to be contributed by extent arising from the Indemnified Persons collectively pursuant to this paragraph exceed the amount gross negligence or willful misconduct of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationan indemnified party.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Agent under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: First Mezzanine Loan Agreement (Clipper Realty Inc.), Mezzanine Loan Agreement (Clipper Realty Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information required to be delivered by Borrower under Article 5 hereof necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideprovide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or (ii), an "ISSUER PERSON") and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the "ISSUER GROUP") for any Losses to which Lender or the Issuer Group may become subject insofar as the Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or necessary in order to make the statements in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (B) agreeing to reimburse Lender and the Issuer Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (A) or (B) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group by or on behalf of Borrower in connection with the SecuritizationProvided Information. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, an the indemnification agreement (i) certifying that provided for in Clauses (A) and (B) above shall be effective in the event an indemnification certificate certifying that Borrower has carefully examined any preliminary or a final offering memorandum described above or prospectus or other document (including any Investor or Rating Agency "term sheets" or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “"Special Considerations," and/or "Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " or similar sections, and (B) all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and that, to the best of Borrower's knowledge, such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, misleading has been requested by Lender and has not been provided by Borrower and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide such requested indemnification certificate.
(iic) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in In connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (collectively, i) Lender and the “Indemnified Persons”), Issuer Group for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) Losses to which any such Indemnified Person Lender or the Issuer Group may become subject insofar as the Securities Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender or the Issuer Group for any legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Lender or the Issuer Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) the indemnified party's and Borrower's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc)
Securitization Indemnification. (a) Borrower understands Borrower, Guarantor and Sponsor understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” shall indemnify Lender and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective its officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for affiliates against any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender and/or its officers, directors, partners, employees, representatives, agents and/or affiliates may become subject in connection with (i) any Disclosure Document and/or (ii) any information furnished to Lender by or on behalf of Borrower in connection with the underwriting or closing of the Loan or in connection with the preparation of any Disclosure Document, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property (collectively, the “Provided Information”), which Provided Information was furnished to the Rating Agencies in connection with issuing, monitoring and/or maintaining the Securities (“Covered Rating Agency Information”), in the case of each of clauses (i) and (ii), insofar as the such Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Provided Information or and/or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact in the Provided Information required to be stated therein or necessary in order to make the statements in the applicable Disclosure Document and/or Covered Disclosure Rating Agency Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is providedmisleading.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons Borrower, Guarantor, Sponsor and Borrower Lender under this Section 9.2 11.02 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Multifamily Loan and Security Agreement (Clipper Realty Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower or its agents, counsel and representatives may be included in Disclosure Documents in connection with the a Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, NRSROs and other advisory and service providers relating to the a Securitization. In the event that the any Disclosure Document is required to be revised prior to the sale of all SecuritiesSecurities in connection with a Securitization, Borrower will reasonably cooperate with Lender (or, if applicable, the holder of the Note applicable interest in the Loan) in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower hereby agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying indemnify Lender, each Noteholder, JPM (whether or not it is the Lender)UBS, any Affiliate of JPM or a Noteholder UBS that has filed any registration statement relating to the Securitization or has acted as the issuer, the sponsor or depositor in connection with the a Securitization, any Affiliate of JPM or a Noteholder UBS that acts as an underwriter, placement agent or initial purchaser of the Securities issued in the connection with a Securitization, any other co-issuers, depositors, underwriters, co-placement agents or co-initial purchasers of the Securities issued in the connection with a Securitization, and each of their respective directors, officers, directors, partners, employees, representatives, agents and Affiliates Affiliates, and each Person or entity who that controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Securitization Indemnified PersonsParties”), ) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Securitization Indemnification Liabilities”)) to which any such Securitization Indemnified Person Party may become subject insofar as the Securitization Indemnification Liabilities arise out of or are based upon upon, (i) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information information provided to Lender by Borrower, any Affiliate of Borrower or arise out any of their respective agents, counsel or are based upon representatives, or (ii) the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such information or necessary in order to make the statements in the Covered Disclosure Informationsuch information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Personmisleading, as they are incurred, in connection with investigating or defending the Liabilities provided, howeverthat, that Borrower shall have liability with respect to Liabilities arising out of notwithstanding the foregoing or based upon the Covered Disclosure Information only anything to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made contrary in this Section 9.2, the Covered Disclosure Information in reliance upon and in conformity with information furnished foregoing indemnification shall relate solely to Lender or such Noteholder by or on behalf of Borrower in connection with (A) the preparation sections of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.entitled
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands and Indemnitor understand that certain of the Provided Information may be included in Disclosure Documents a private placement memorandum, offering circular or other offering or disclosure documents (the "DISCLOSURE DOCUMENTS") in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, any securities exchange, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Indemnitor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary available to Borrower and necessary, with respect to the Provided Information, the Properties, the Master Leases, the Master Tenants, Borrower and its Affiliates, or the Loan, to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Indemnitor agree to provide, provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus
(A) certifying that Borrower has and Indemnitor have carefully examined the Disclosure DocumentsOffering Materials, including, including without limitation, the sections entitled “"Summary of Offering Memorandum," "Risk Factors,” “Special Considerations,” “" "Description of the CollateralMortgaged Properties,” “" "Description of the Mortgage Loan," "Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” Loan" and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections "Entertainment Properties Trust" and such other information in the Disclosure Documents (Offering Materials to the extent such information relates they relate to or includes include any Provided Information or any information regarding Information, and as they relate to the Properties, Borrower, Mortgage Borrowerthe Master Leases, the CollateralMaster Tenants, Borrower and its Affiliates or the Loan (other than federal income tax matters and ERISA matters which do not pertain to the Properties, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationMaster Leases, the “Covered Disclosure Information”) Master Tenants, Borrower or its Affiliates), do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying Lender, each NoteholderBear, JPM Stea▇▇▇ & ▇o. Inc. (whether or not it is the Lender"BS & CO.") Bear Stea▇▇▇ ▇▇▇mercial Mortgage Inc. ("BSCM"), any Affiliate Bear, Stea▇▇▇ ▇▇▇mercial Mortgage Securities Inc. ("BSCMS"), Bear Stea▇▇▇ ▇▇▇l Estate Group, Inc. ("BSREG"), Bear Stea▇▇▇ ▇▇▇ernational Limited ("BSIL"), the affiliate of JPM or a Noteholder Lender that has filed any the registration statement statement, if any, relating to the Securitization or has acted as securitization (the sponsor or depositor in connection with the Securitization"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents officers and Affiliates directors and each Person person or entity who controls any each such Person within the meaning of Section 15 of the Securities Act, or Section 20 of the Exchange Act (Lender, such other Indemnified Persons, BS & Co., BSCM, BSIL, BSCMS, BSREG, and such affiliates, directors, officers, person or entity being hereinafter referred to collectively as the "BEAR STEA▇▇▇ ▇▇▇UP"), and BS & Co. and each other underwriter or placement agent with respect to the Securities, each of their respective officers and directors and each person or entity who controls each such Person within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, the Bear Stea▇▇▇ ▇▇▇up or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or misstatement or alleged untrue statement or misstatement of any material fact contained in the Covered Disclosure Information portions of the Offering Materials covered by the indemnification certificate (the "COVERED INFORMATION") or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the Covered Information or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Bear Stea▇▇▇ ▇▇▇up and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, in Lender and Bear Stea▇▇▇ ▇▇ connection with investigating or defending the Liabilities provided, however, that Borrower shall have Liabilities. The liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements Indemnitor under the indemnification provided for in clauses (B) and rent rolls with respect to the Properties), and in no event (C) above shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower or Indemnitor may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not effective, and Borrower and Indemnitor hereby agree to indemnify and hold harmless Lender, the Bear Stea▇▇▇ ▇▇▇up and the Underwriter Group if Borrower and Indemnitor fail to deliver an indemnification agreement certificate described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information within a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light reasonable time after delivery of the circumstances under which they were made, not misleading applicable Offering Materials to Borrower and (ii) reimburse each Indemnified Person Indemnitor for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person review in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable request for the expenses of more than one (1) such separate counsel unless such Indemnified Person indemnification certificate and indemnification by Borrower and Indemnitor shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld)applicable based on information previously provided by Indemnitor, Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent Affiliates of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.or
Appears in 1 contract
Securitization Indemnification. (a) Borrower Each Obligor understands that certain of the Provided Information and the information required to be delivered by Borrower hereunder (the "REQUIRED REPORTS") may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including a prospectus or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the United States Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”)applicable law, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all SecuritiesSecurities or other transfer of ownership with respect to the Securitization, Borrower each Obligor will cooperate with the holder of the Note in updating the Provided Information or Required Reports for inclusion or summary in the Disclosure Document by providing all current information pertaining to any Obligor, any Subsidiary of an Obligor, and the Individual Properties necessary to keep the Disclosure Document accurate and complete in all material respects with respect to the extent in Borrower’s possessionsuch matters.
(b) In connection with each of (x) a preliminary and a private placement memorandum or (y) a preliminary and final prospectus, as applicable, Borrower agrees to provide, in connection with the Securitization, provide an indemnification agreement certificate:
(i) provided Borrower has been requested by Lender to do so, and if the applicable items have been revised to reflect all of Borrower's comments, certifying that (A) Borrower has carefully examined those portions of such memorandum or prospectus, as applicable, expressly pertaining to any Obligor, any Subsidiary of an Obligor, and the Disclosure Documents, including, without limitation, Individual Properties and the Loan including applicable portions of the sections entitled “Risk Factors,” “"Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “The Operating Company,” “The " "Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " (or analogous portions or sections) and (B) such sections (and such any other information in sections reasonably requested and pertaining to any Obligor, any Subsidiary of an Obligor, and the Disclosure Documents (Individual Properties or the Loan), all of which sections have been identified to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) Borrower by Lender do not contain any untrue statement of a material fact or or, to the best of Borrower's knowledge, omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleadingmaterially misleading as the applicable sections pertain to Borrower, the Loan and the Properties;
(ii) indemnifying Lender, each Noteholder, JPM (whether or not it is Lender and the Lender), any Affiliate Affiliates of JPM or Lender that have filed a Noteholder that has filed any registration statement relating to the Securitization (the "REGISTRATION STATEMENT"), each of their directors, each of their officers who have signed the Registration Statement and each Person who controls Lender or has acted as Lender Parent within the sponsor meaning of any federal or depositor in connection with state securities laws (collectively, the Securitization"LENDER GROUP"), any Affiliate of JPM underwriters selected by Lender or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in Lender Parent for the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person the underwriters in question, within the meaning of Section 15 of the Securities Act any federal or Section 20 of the Exchange Act state securities laws (collectively, the “Indemnified Persons”), "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses liabilities (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information applicable portions of such sections described in Section 12.10(b)(i) expressly applicable and relating to the Obligors, any Subsidiary of the Obligors, the Individual Properties or the Loan, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the applicable portions of such sections or necessary in order to make the statements in the Covered Disclosure Information, applicable portions of such sections or in light of the circumstances under which they were made, not misleading and misleading, provided, however, that Borrower shall not be required to indemnify Lender for any Liabilities relating to untrue statements or omissions which Borrower identifies to Lender in writing at the time of Borrower's examination of the Registration Statement; and
(iii) agreeing to reimburse each Indemnified Person the Lender, the Lender Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Persons in connection with investigating or defending the Liabilities providedLiabilities. Borrower's Liability under clauses (i), however, that Borrower (ii) above and this clause (iii) shall have liability with respect be limited to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information prepared and furnished to Lender or such Noteholder by or on behalf any Obligor pursuant to provisions of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties)Sections 12.08, 12.09, and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)12.10 hereof. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 12.10 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 12.10, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 12.10, the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right right, following notice to and consultation with Borrower, to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties at the expense of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(ed) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity provided for in question (which consent shall not this Section 12.10 is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to indemnifiable under this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to 12.10 the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees (by underwriting discount or otherwise) actually received by respective parties are entitled, the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 following factors shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.be considered:
(i) Notwithstanding anything the Lender Group's and Borrower's relative knowledge and access to information concerning the contrary contained herein, Borrower shall have no obligation to act as depositor matter with respect to which claim was asserted; (ii) the Loan opportunity to correct and prevent any statement or an issuer omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it may not be equitable if the amount of such contribution were determined by pro rata or registrant with respect to the Securities issued in any Securitizationper capita allocation.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus or term sheets, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Propertiessections reasonably requested) as reviewed and modified, as applicable, by Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇, each of its directors and each Person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities actually incurred (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any reasonable legal or other expenses reasonably and actually incurred by such Indemnified Person, as they are incurred, Lender the ▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower, and its Affiliates if Borrower does not provide the indemnification certificate. Notwithstanding anything to the contrary contained in this Section 9.2, Borrower shall not be required to indemnify Lender, the ▇▇▇▇▇▇ Group, or the Underwriter Group for any liabilities relating to untrue statements or omissions of fact which Borrower identified to Lender in writing at the time of Borrower’s examination of such Disclosure Documents.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons ▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities. Notwithstanding anything to the contrary contained in this Section 9.2, ▇▇▇▇▇▇, the ▇▇▇▇▇▇ Group and the Underwriter Group shall not be entitled to indemnification under this Section 9.2 for any Liabilities to the extent that such Liabilities arise solely out of the fraud, gross negligence, willful misconduct or illegal acts of ▇▇▇▇▇▇, the ▇▇▇▇▇▇ Group and/or the Underwriter Group.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of which indemnification may be sought hereunder any Liability (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceedingaction in respect thereof) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall therein which would otherwise be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.indemnifiable under
Appears in 1 contract
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder holder(s) of the Note Notes in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideUpon Lender’s reasonable request, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) Borrower has carefully certifying that Borrowers have examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (specified by Lender and that to the extent each Borrower’s actual knowledge, each such information Disclosure Document, as it relates to or includes any Provided Information or any information regarding Borrowers, Borrowers’ Affiliates, Guarantors, HRHI, the Properties, Borrower, Mortgage Borrowerthe IP, the CollateralManagers, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationLiquor Manager, the “Covered Disclosure Information”) do Gaming Operator and/or the Loan (including each of the Components), does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM Credit Suisse (whether or not it is the Lender), any Affiliate of JPM Lender or a Noteholder Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM Lender or a Noteholder Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to Borrowers, Borrowers’ Affiliates, Guarantors, HRHI, the Covered Disclosure Information Properties, the IP, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan (including each of the Components), known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements in the Covered Disclosure Informationtherein, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Borrowers will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the any Disclosure Documents Document(s) or in connection with the underwriting or the closing of the Loan (including or in the ordinary course of the Loan, including, without limitation limitation, financial statements of Borrower and any Borrower, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to Borrowers, Borrowers’ Affiliates, Guarantors, HRHI, the Covered Disclosure InformationProperties, the IP, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan (including any of the Components), or the omission or alleged omission to state in the Covered any such Disclosure Information Document a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in such Disclosure Document in order to make the statements in the Covered such Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Borrower, operating statements and rent rolls with respect to any of the Properties.
(d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of any claim or the commencement of any action, the such Indemnified Person shallwill, if a claim in respect thereof is to be made against BorrowerBorrowers under this Section 9.3, notify Borrower Borrowers in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that the failure omission to so notify Borrower shall Borrowers will not relieve it any Borrower from any liability which it any Borrower may have under the indemnification provisions of this Section 9.2 to any Indemnified Person hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes material prejudice to any liability which it may have to an Indemnified Person otherwise than under Borrower. In the provisions of this Section 9.2. If event that any such claim or action shall be is brought against an any Indemnified Person, and it shall notify Borrower notifies Borrowers of the commencement thereof, Borrower shall Borrowers will be entitled to participate therein and, to the extent that it wishesthey may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Person. After notice from any Borrower Borrowers to an such Indemnified Person of its election to assume the defense of under this Section 9.3, such claim or action, Borrower shall not be liable to the Indemnified Person shall pay for any legal or other expenses subsequently incurred by the such Indemnified Person in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, Indemnified Person and one or more Indemnified Persons on any Borrower and the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or in addition additional to those available to BorrowerBorrowers, the Indemnified Person or Persons Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or PersonsPerson(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Credit Suisse or Lender, as applicable (which consent shall not be unreasonably withheld), no Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Borrowers shall have given such Indemnified Person Credit Suisse or Lender, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower has Borrowers have complied with its their obligations to defend and indemnify hereunder, Borrower Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Borrowers (which consent shall not be unreasonably withheld).
(f) Borrower agrees Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.3), then BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerBorrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section 9.29.3, (A) no party Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Borrowers further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.3.
(h) The Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of the Indemnified Persons Borrowers and Borrower Lender under this Section 9.2 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) 14.2.1 Borrower understands that certain of the Provided Securitization Information and the financial reports relating to the Properties may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, an "Offering Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Offering Document is required to be revised prior to the sale of all Securities, the Borrower will cooperate with the holder of the Note in updating the Disclosure Offering Document by providing all current information necessary to keep the Disclosure Offering Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) 14.2.2 Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “"Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “" "The Operating CompanyManager,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 14.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any Affiliate affiliate of JPM or a Noteholder Lender that has filed any or may file the registration statement relating to the Securitization or has acted as securitization (the sponsor or depositor in connection with "Registration Statement"), each of its directors, each of its officers who have signed the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, Registration Statement and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person person or entity who controls any such Person Lender within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Act, (collectively, the “Indemnified Persons”), "Underwriter Group") for any losses, claims, damages, liabilities, costs damages or expenses liabilities (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “"Liabilities”)") to which any such Indemnified Person Lender, or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Equity Inns Inc)
Securitization Indemnification. (ai) Borrower understands that certain of the Provided Information may be included in Disclosure Documents and each Guarantor agree to provide in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933each Disclosure Document, an indemnification certificate, as amended (the “Securities Act”set forth in Section 10.02(d)(ii), or the Securities and Exchange Act of 1934indemnifying Lender, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securitiesany Issuer Person, the Rating AgenciesIssuer Group and/or the Underwriter Group (as those terms are defined in Section 10.02(d)(vii)) (each, an “Indemnified Party,” and service providers relating collectively “Indemnified Parties”) for any losses to which any Indemnified Party may become subject under the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note conditions set forth in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionthis Section.
(bii) Borrower agrees to provide, in connection with the Securitization, an The indemnification agreement (i) certifying that certificate will provide that
(A) Borrower has and each Guarantor have carefully examined those sections of the Disclosure DocumentsDocuments relating to the following:
(1) Borrower, includingany SPE Equity Owner, without limitationany operator of the Facility, any Guarantor, any Property Manager, their respective Affiliates, the Loan and the Mortgaged Property (“Borrower Information”).
(2) The sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such or similar sections and such other information in the Disclosure Documents (but only to the extent such information relates sections specifically refer to or includes any Provided Borrower Information or any information regarding (“Borrower Information Sections”).
(B) To the Properties, best of Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively ’s and each Guarantor’s knowledge with the Provided regard to Borrower Information, the “Covered Disclosure Information”) Borrower Information Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is . Notwithstanding the Lender)foregoing, any Affiliate indemnification certificate may expressly exclude any information contained in third party reports prepared by parties that are not Affiliates of JPM Borrower or a Noteholder that has filed of any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Guarantor (collectively, the “Indemnified PersonsThird Party Information”), and the obligations and liability of Borrower and any Guarantor pursuant to this Section will not extend to the Third Party Information.
(iii) Borrower’s and each Guarantor’s agreement to indemnify the Indemnified Parties for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) losses to which any such Indemnified Person Party may become subject insofar as the Liabilities will extend only to such losses that arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents or arise out of or are based upon the omission or alleged omission to state in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents a material fact required to be stated therein or in such sections necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading (collectively, “Securities Liabilities”).
(iv) Borrower and (iii) agreeing each Guarantor agrees to reimburse each any Indemnified Person Party for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Party in connection with investigating or defending the Liabilities providedSecurities Liabilities. (v) The indemnitors will be liable under Section 10.02(d) (ii), however, that Borrower shall have liability with respect to Liabilities arising out of (iii) or based upon the Covered Disclosure Information (iv) only to the extent that such Securities Liabilities arise out of of, or are based upon upon, any such untrue statement or omission made in the Covered Disclosure Information Documents in reliance upon upon, and in conformity with information with, Borrower Information furnished to Lender or such Noteholder any Indemnified Party by or on behalf of Borrower or a Guarantor in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower Borrower, any SPE Equity Owner, any Guarantor or any operator of the Facility, and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is providedMortgaged Property.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Seniors Housing Loan and Security Agreement (Care Investment Trust Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document with respect to the Loan accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (the "Indemnification Agreement") (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, including the sections entitled “"Risk Factors,” “" "Special Considerations,” “Consideration", "Description of the Collateral,” “" "Description of the Mezzanine Loans,” “The Operating Company,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine Loans,” " and (B) such sections and such other information in the Disclosure Documents (only to the extent such information relates to or includes any Provided Information or any information regarding specific to the PropertiesLoan, the Loan Documents, Borrower, Mortgage Borrower, Maryland Owner, the Collateral, the Senior Mezzanine Collateral and/or Property, Master Tenant, Operator, Guarantor and the Master Lease and the Operating CompanyLease) (collectively with the Provided Information, the “"Covered Disclosure Information”") do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each NoteholderJPMorgan, JPM (whether CS, BofA, or not it is the Lender), any Affiliate of JPM Lender, JPMorgan, CS or a Noteholder BofA that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, or any Affiliate of JPM Lender, JPMorgan, CS or a Noteholder BofA that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “"Indemnified Persons”"), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, including reasonable legal fees and expenses for enforcement of these obligations (collectively, the “"Liabilities”")) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any reasonable legal fees or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise havehave pursuant to the Loan Documents or applicable law. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above Indemnification Agreement is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any reasonable legal fees or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person and shall have the right to negotiate and enter into and/or consent to any settlement, subject to the prior approval of Lender and, if different, the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s 's fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person Lender, JPMorgan, CS and BofA (in question (each case which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender, JPMorgan, CS and BofA, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) proceeds actually received by the Indemnified Persons in connection with the closing sale of the Loan or portion thereof pursuant to the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall not have no any obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Hcp, Inc.)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by such Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, Agencies and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Each Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that such Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description such provisions of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent as specified by Lender and that each such information Disclosure Document, as it relates to or includes any Provided Information or any information regarding the Properties, such Borrower, Mortgage such Borrower's Affiliates, the Collateralapplicable Individual Property, Manager and all other aspects of the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationLoan, the “Covered Disclosure Information”) do does not contain any untrue statement of a 153 material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleadingmisleading (provided such Disclosure Documents are not materially modified after Borrower's review), (iiB) indemnifying LenderLender (and for purposes of this SECTION 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder UBS Warburg ("UBS") that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"UBS GROUP"), and UBS, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls UBS or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person may become subject Lender, the UBS Group or the Underwriter Group incur insofar as the Liabilities arise out of of, or are based upon upon, any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections specified by Lender or arise out of of, or are based upon upon, the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections specified by Lender or necessary in order to make the statements in the Covered Disclosure Informationsuch sections specified by Lender, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person Lender, the UBS Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the UBS Group and/or the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Borrowers will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of of, or are is based upon upon, any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon upon, and in conformity with with, information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower and Borrowers, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower Borrowers may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the any Exchange Act (if any)Filing, Borrower agrees to indemnify Borrowers shall (i) indemnify Lender, the Indemnified Persons UBS Group and the Underwriter Group for Liabilities to which any such Indemnified Person may become subject Lender, the UBS Group and/or the Underwriter Group actually incur insofar as the Liabilities arise out of of, or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Informationupon, or the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person Lender, the UBS Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the UBS Group and/or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this SECTION 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this SECTION 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. 154 In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this SECTION 9.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any reasonable legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personthe indemnifying party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question SECTION 9.2(b) or (which consent shall not c) is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under SECTION 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); PROVIDED, on the one handHOWEVER, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) UBS's and Borrowers' relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrowers hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrowers and Borrower Lender under this Section SECTION 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower Pledgor understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Pledgor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information reasonably necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower Pledgor agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower Pledgor has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description portions of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (memorandum or prospectus or term sheets identified by Lender that relate to the extent such information relates to or includes any Provided Information or any information regarding Loan, the Properties, Borrowerthe Collateral, Pledgor, Principal, Mortgage Borrower, the CollateralMortgage Principal, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) any Affiliated Manager and Guarantor and that such sections do not contain any untrue statement of a material fact relating to the Loan, the Properties, the Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, any Affiliated Manager and Guarantor or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender (“Citigroup”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsCitigroup Group”), and Citigroup, each of its directors and each Person who controls Citigroup within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to the Loan, the Properties, the Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, any Affiliated Manager and Guarantor contained in such sections described in clause (A) above, or arise out of or are based upon the Covered Disclosure Information omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections relating to the Loan, the Properties, the Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, any Affiliated Manager and Guarantor or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Citigroup Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender the Citigroup Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Pledgor will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Pledgor or its Affiliates in connection with the preparation of the memorandum or prospectus or in connection with the underwriting of the debt, including, without limitation, financial statements of Pledgor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnification will be in addition to any liability which Pledgor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Pledgor or its Affiliates if Pledgor does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act, Pledgor agrees to indemnify (i) Lender, the Citigroup Group and the Underwriter Group for Liabilities to which Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact relating to the Loan, the Properties, the Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, any Affiliated Manager or Guarantor required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Citigroup Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Citigroup Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, . In determining the
(i) Citigroup’s and Pledgor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) Borrower agrees any other equitable considerations appropriate in the circumstances. Lender and Pledgor hereby agree that in no event shall the amount to it would not be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed equitable if the amount of the fees (such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Pledgor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Covered Disclosure Document Information by providing all current information necessary to keep the Covered Disclosure Document Information accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has carefully examined the Indemnifying Persons have, at Lender’s request in connection with each Securitization, reviewed the sections of the Disclosure Documents, including, without limitation, the sections Documents entitled “Risk Factors,” (solely to the extent the “Risk Factors” relate to Borrower, Mortgage Borrower, Operating Lessee, Guarantor, Manager, IP Collateral, the Management Agreement, the North Beach Property, the North Beach Property Documents, any Rental Management Program, any Mezzanine B Borrower, the Pledged Collateral and the Property), “Special Considerations,” “Description of the CollateralMortgage,” “Description of the Pledge Agreement,” “Description of the Mortgage Loan and Mortgaged Property,” “Description of the Mezzanine LoansLoan and Pledged Collateral”, “Description of the Borrower,” “The Description of the Operating CompanyLease and Operating Lessee,” “The BorrowerDescription of the Property Manager, Management Agreement and Assignment and Subordination of Management Agreement,” “Description of the Intellectual Property,” “Description of the Mezzanine Loan”, “Annex E – Representations and Warranties of the Borrowers”, “Certain Legal Aspects of the Mortgage Loan,” and “Certain Legal Aspects of the Mezzanine Loans,” (and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to section similarly titled or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Companycovering similar subject matters) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (ii) the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender or its designee (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the and Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Strategic Hotels & Resorts, Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information and the Required Records may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will and Parent will cause each Loan Party to cooperate with the holder holders of the Note Notes in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideto, and Parent shall cause each Loan Party to, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower and each other Loan Party has carefully examined the Disclosure Documentssuch memorandum or prospectus, as applicable, including, without limitation, the sections entitled “Risk Factors,” “"Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “" "The Operating CompanyManager,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderAdministrative Agent and Lenders (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderAdministrative Agent and Lenders hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Nomura Securities International, Inc. ("NOMURA") that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with "REGISTRATION STATEMENT"), each of its directors, each of its officers who have signed the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, Registration Statement and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"NOMURA GROUP"), and each of Nomura, BT Alex. Brow▇ ▇▇▇orporated, each of its directors and each person who controls Nomura or BT Alex. Brow▇ ▇▇▇orporated, as the case may be, within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses liabilities (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, Administrative Agent, the Nomura Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Informationsuch sections, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person Administrative Agent, Lenders, the Nomura Group 118 125 and the Underwriter Group for any reasonable legal or other out-of-pocket expenses reasonably incurred by such Indemnified PersonAdministrative Agent, as they are incurred, Lenders and the Nomura Group and the Underwriting Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of (or based upon the Covered Disclosure Information such Loan Party) will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liabilities arise loss, claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender Administrative Agent (or such Noteholder any Lender) by or on behalf of Borrower or any Loan Party in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including Debt, including, without limitation limitation, financial statements of Borrower or any Loan Party and operating statements statements, Rent Rolls, environmental site assessment reports and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)each Asset. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Bristol Hotel Co)
Securitization Indemnification. (a) Borrower understands and Guarantor understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.Investors or
(b) Borrower agrees and Guarantor agree to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus or term sheets, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Barclays Capital Real Estate Inc. (“Barclays”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsBarclays Group”), and Barclays, each of its directors and each Person who controls Barclays within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Barclays Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above, or arise out of or are based upon the Covered Disclosure Information omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Barclays Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender the Barclays Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower. Guarantor will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower and Guarantor in connection with the preparation of the memorandum or prospectus or in connection with the underwriting of the debt, including, without limitation, financial statements of Borrower and Guarantor, operating statements, rent rolls, environmental site assessment reports and Property condition reports. This indemnification will be in addition to any liability which Borrower, Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower, Guarantor or their respective Affiliates if Borrower, Guarantor do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act, Borrower, Guarantor agree to indemnify (i) Lender, the Barclays Group and the Underwriter Group for Liabilities to which Lender, the Barclays Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Barclays Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Persons▇▇▇▇▇▇, as they are incurred, the Barclays Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory ▇▇▇▇▇▇▇▇▇▇▇▇ to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees (by underwriting discount or otherwise) actually received by respective parties are entitled, the Indemnified Persons in connection with the closing of the Loan or the Securitization.following factors shall be considered:
(gi) Borrower agrees that Barclays’ and Borrower’s, Guarantor’s relative knowledge and access to information concerning the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.matter
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Guarantor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (CaliberCos Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information with respect to the Borrower, Manager, Master Lessee, the Master Lease, if any, and the Property necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” or similar sections, and (B) all sections relating to Borrower, Manager, Master Lessee, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact relating to the Borrower, Manager, Master Lessee and/or the Property or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.05, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsIssuer Group”), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “LiabilitiesUnderwriter Group”)) for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Covered Disclosure Information Property and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact relating to the Borrower, Manager, Master Lessee and/or the Property that is required to be stated in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or necessary in order to make the statements in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have to Lender pursuant to this Agreement and the other Loan Documents. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.05 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.05, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.05 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.05(c) or Section 13.05(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.05(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.05(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower and Borrower Lender under this Section 9.2 13.05 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will reasonably cooperate with the holder of the Note in updating the Disclosure Document by providing all reasonably current information regarding the Property, Borrower and/or Mortgage Borrower necessary to keep the Disclosure Document accurate and complete in all material respects as it relates to the extent in Borrower’s possessionProperty, Borrower and Principal.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined those portions of the Disclosure DocumentsDocuments reasonably designated in writing by Lender for Borrower’s review regarding the Property, Borrower and/or Mortgage Borrower including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgage Loans and Mortgaged Property” (solely as it relates to Borrower or the Property itself and not with respect to the Loan, the Loan Documents or any other matter), “The Manager,” “Description of the Mezzanine Loans,” “The Operating Company,” and “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do and that the information provided in such portions of the Disclosure Documents regarding the Property, the Borrower and the Manager does not (except to the extent specified by Borrower if Borrower does not agree with the statements contained therein), as of the date of such certificate, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, and (ii) jointly and severally indemnifying Lender, each Noteholder, JPM Credit Suisse (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or in the case of an offering pursuant to Rule 144A, co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any actual out-of-pocket losses, claims, damages (excluding lost profits, diminution in value and other consequential damages), liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as to the extent the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein in the Covered Disclosure Information or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading misleading. Notwithstanding anything to the contrary herein or in any indemnification agreement, (x) each Indemnifying Person’s obligation to indemnify in respect of any information contained in a preliminary or final registration statement, private placement memorandum or preliminary or final prospectus that is derived in part from information provided by Borrower and in part from information provided by others unrelated to or not employed by Borrower shall be limited to any untrue statement or omission of material fact in the Covered Disclosure Information known to Borrower that results directly from an error in any information provided (or which should have been provided) by Borrower which Borrower has been given the opportunity to examine and reasonably approve and (iiiy) agreeing Borrower shall have no responsibility for the failure of any member of the Securitization underwriting group to reimburse each Indemnified Person for any legal accurately transcribe written information supplied by Borrower or other expenses incurred by to include such Indemnified Person, as they are incurred, in connection with investigating or defending portions of the Liabilities Covered Disclosure Information); provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon (1) the Covered Disclosure Information Indemnifying Persons will be liable in any such case under clause (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information which the Indemnifying Persons have been given the opportunity to examine and reasonably approve in reliance upon and in conformity with information furnished to Lender or such Noteholder the Indemnified Persons by or on behalf of Borrower the Indemnifying Persons in connection with the preparation of the Covered Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Information. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. Notwithstanding anything to the contrary contained in this Section 9.2, the indemnity, reimbursement and contribution obligations set forth in this Section 9.2 with respect to any preliminary private placement memorandum or preliminary prospectus shall not inure to the benefit of any Indemnified Person if the Person asserting any such loss, claim, damage or liability purchased any of the Securities which are the subject thereof and did not receive a copy of the final private placement memorandum or final prospectus (or the final private placement memorandum or final prospectus as supplemented) at or prior to the confirmation of the sale of such Securities to such Person in any case where such delivery is required and the untrue statement or omission of a material fact contained in such preliminary private placement memorandum or preliminary prospectus was corrected in the final private placement memorandum or final prospectus (or the final private placement memorandum or final prospectus as supplemented).
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2failure. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, may elect through written notice delivered to an Indemnified Party promptly after receiving the aforesaid notice from such Indemnified Person to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded (based on written advice of its counsel) that there may be legal defenses available to it that are different from or additional to those available to another Indemnified any Indemnifying Person.
(ed) Without the prior consent of the Indemnified Person in question Credit Suisse (which consent shall not be unreasonably withheld, conditioned or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be has been sought hereunder (whether or not any Indemnified unless the Indemnifying Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person Credit Suisse reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding to the extent, and only to the extent, the settled claim, action, suit or proceeding relates, directly or indirectly, to the Covered Disclosure Information. Without the prior consent of Borrower (which consent shall not be unreasonably withheld, conditioned or delayed), no Indemnifying Person shall settle or compromise or consent to the entry of any judgment in any pending claim, action, suit or proceeding in respect of which indemnification has been sought hereunder. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed).
(fe) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: insufficient as a result of such actual or out-of-pocket losses, third party claims, damages or liabilities (or action in respect thereof) (but excluding damages for lost profits, diminution in value of the Property and consequential damages): (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(gf) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hg) The rights, liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(ih) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Affiliate thereof shall have no any obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
(i) Notwithstanding anything to the contrary provided in this Agreement or in any other Loan Document or indemnification agreement, the indemnification provided in this Section 9.2 shall be fully recourse to Borrower, but shall be limited to Borrower’s interest in the Property.
Appears in 1 contract
Sources: First Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine LoansLoans and the Properties,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansLoan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesProperty, Borrower, Mortgage Borrower, General Partner, Principal, Guarantor, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements mademade therein, in the context of the Covered Disclosure Information and in light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM CSFB (whether or not it is the Lender), any Affiliate of JPM or a Noteholder CSFB that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder CSFB that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact made by such Indemnifying Persons contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission of, or caused by, such Indemnifying Persons to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, and provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, that if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified any Indemnifying Person.
(e) Without the prior written consent of the Indemnified Person in question CSFB (which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person CSFB reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights, liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (CNL Income Properties Inc)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, each Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “"Risk Factors,” “" "Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “" "The Operating CompanyManager,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " provided to Borrowers or their representatives and (B) such sections and such other information in the Disclosure Documents provided to such Borrowers or their representatives (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, BorrowerBorrowers, Mortgage BorrowerManager, Guarantor and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “"Covered Disclosure Information”") do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM Credit Suisse (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “"Indemnified Persons”"), for any losses, claims, actual damages, liabilities, costs or expenses (including, including without limitation, limitation reasonable legal fees and expenses for enforcement of these obligations (collectively, the “"Liabilities”")) to which any such Indemnified Person may become subject insofar as to the extent the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This Such indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as to the extent the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any reasonable legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s 's fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Credit Suisse (which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Credit Suisse reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower, Mortgage Borrower, or their agents, counsel and representatives may be included in Disclosure Documents in connection with the a Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, NRSROs and other advisory and service providers relating to the a Securitization. In the event that the any Disclosure Document is required to be revised prior to the sale of all SecuritiesSecurities in connection with a Securitization, Borrower will cooperate with Lender (or, if applicable, the holder of the Note applicable interest in the Loan) in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideshall certify, in connection with the any Disclosure Document provided to Borrower by Lender in connection with a Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the provisions of such Disclosure DocumentsDocument, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The reasonably designated in writing by Lender for Borrower” 's review and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (pertaining to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralGuarantor, Manager, the Senior Mezzanine Collateral and/or Operating Companythe Property (which designation shall in no event include the descriptions or summaries of the terms and conditions of the Loan Documents) and any special risks or considerations relating thereto (but not including risks or special considerations relating to local or federal law) (collectively with the Provided Information, the “"Covered Disclosure Information”") do and such Covered Disclosure Information does not (except to the extent noted by Borrower in writing to Lender if Borrower does not agree with the statements therein), as of the date of such certification, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying . Borrower hereby agrees to indemnify Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the issuer, the sponsor or depositor in connection with the a Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of the Securities issued in the connection with a Securitization, any other co-issuers, depositors, underwriters, co-placement agents or co-initial purchasers of the Securities issued in the connection with a Securitization, and each of their respective directors, officers, directors, partners, employees, representatives, agents and Affiliates Affiliates, and each Person or entity who that controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “"Securitization Indemnified Persons”), Parties") for any liabilities, obligations, actual losses, damages, penalties, actions, judgments, suits, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “"Securitization Indemnification Liabilities”)") to which any such Securitization Indemnified Person Party may become subject insofar as the Securitization Indemnification Liabilities arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of of, or are based upon upon, the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) a breach of the representations and warranties made by Borrower in Section 3.1.34 of this Agreement (except that (A) Borrower's obligation to indemnify in respect of any information contained in a Disclosure Document that is derived in part from information provided by Borrower or any Affiliate of Borrower and in part from information provided by others unrelated to or not employed or engaged by Borrower shall be limited to any untrue statement or omission of material fact therein known to Borrower that results directly or indirectly from an error in any information provided (or which should have been provided) by Borrower and (B) Borrower shall have no responsibility under this Section 9.2 for (x) any untrue statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to in writing to Lender so long as such objection is not inconsistent with information :furnished to Lender by or on behalf of Borrower in connection with the origination of the Loan or (y) numbers which have been submitted by Borrower and adjusted by any of the Securitization Indemnified Parties from those submitted by Borrower, to the extent of such adjustment). Borrower also agrees to reimburse each Securitization Indemnified Person Party, within ten (10) Business Days after request therefor, for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified PersonsParty in connection with investigating or defending the Securitization Indemnification Liabilities. Borrower's liability under this paragraph will be limited to any such Securitization Indemnification Liability that arises out of or is based upon an untrue statement or omission made therein in reliance upon and in conformity with information :furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or closing of the Loan (including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property). This indemnity provision will be in addition to any obligation or liability which Borrower may otherwise have.
(c) In connection with Exchange Act Filings and information therein or other reports containing comparable information that are required to be made "available" to holders of the Securities under Regulation AB or applicable Legal Requirements, as they it relates to the Property, Borrower, Mortgage Borrower, Guarantor, any Affiliate of Borrower, Mortgage Borrower or Guarantor, Manager or any other aspect of the Loan, Borrower agrees to (i) indemnify the Securitization Indemnified Parties for Securitization Indemnification Liabilities to which any Securitization Indemnified Party may become subject insofar as the Securitization Indemnification Liabilities arise out of, or are incurredbased upon, an untrue statement or omission made in reliance upon, and in conformity with, information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Document, in connection with the underwriting or closing of the Loan or any of the reports, statements or other information furnished by or on behalf of Borrower pursuant to the terms of this Agreement, including financial statements of Borrower, operating statements and rent rolls with respect to the Property and (ii) reimburse each Securitization Indemnified Party, within ten (10) Business Days of demand therefor, for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified Party in connection with defending or investigating the Securitization Indemnification Liabilities.
(d) Promptly after receipt by an a Securitization Indemnified Person Party of notice of any claim or the commencement of any actionaction or suit, the such Securitization Indemnified Person Party shall, if a claim for indemnification in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that actionsuch action or suit; provided, however, that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have under the indemnification provisions of this Section 9.2 9 .2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have to an any Securitization Indemnified Person Party otherwise than under the provisions of this Section 9.2. If any such claim claim, action or action suit shall be brought against an any Securitization Indemnified PersonParty, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the such Securitization Indemnified PersonParty. After notice from any Borrower to an the applicable Securitization Indemnified Person Party of its Borrower's election to assume the defense of such claim claim, action or actionsuit, Borrower shall not be liable to the such Securitization Indemnified Person Party for any legal or other costs and expenses subsequently incurred by the such Securitization Indemnified Person Party in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action or suit include both Borrower, on the one hand, and one or more Securitization Indemnified Persons Parties on the other hand, and an a Securitization Indemnified Person Party shall have reasonably concluded that there are any legal defenses available to it and/or other Securitization Indemnified Persons Parties that are different or in addition to those available to Borrower, the Securitization Indemnified Person Party or Persons Parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action or suit on behalf of such Securitization Indemnified Person Party or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified PersonParties. Borrower shall not be liable for the reasonable costs and expenses of more than one (1) such separate counsel unless such a Securitization Indemnified Person Party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Securitization Indemnified PersonParty. The Securitization Indemnified Party shall instruct its counsel to maintain reasonably detailed billing records for reasonable fees and disbursements for which such Securitization Indemnified Party is seeking or intends to seek reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel's reasonable fees and disbursements are related solely to the defense of a claim for which Borrower is required hereunder to indemnify such Securitization Indemnified Party.
(e) Without the prior written consent of the applicable Securitization Indemnified Person in question Party (which consent shall not be unreasonably withheldwithheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Securitization Indemnified Person Party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such the applicable Securitization Indemnified Person Party reasonable prior notice thereof and shall have obtained an unconditional release of each Securitization Indemnified Person hereunder Party from all liability Securitization Indemnification Liabilities arising out of or relating to such claim, action, suit or proceedingsproceeding. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Securitization Indemnified Person Party without the consent of Borrower (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Securitization Indemnified Person Party harmless (with respect only to the Securitization Indemnification Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Securitization Indemnified PersonParty, on the other hand, shall contribute to the Securitization Indemnification Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Securitization Indemnified PersonParty, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only not.only the relative benefits referred to in clause (xi) above but also the relative faults of Borrower, on the one hand, and all Securitization Indemnified PersonsParties, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered:
(A) the Securitization Indemnified Parties and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (B) the opportunity to correct and prevent any statement or omission; and (C) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. Notwithstanding the provisions of this Section 9.2, (AI) no party Person found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (BII) Borrower agrees that in no event shall the amount to be contributed by the Securitization Indemnified Persons Parties collectively pursuant to this paragraph Section 9.2(f) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Securitization Indemnified Persons Parties in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Securitization Indemnified Person Party is a formal party to any lawsuitsclaim, claims action, suit or other proceedingsproceeding. Borrower further agrees that the Securitization Indemnified Persons Parties are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of Borrower and the Securitization Indemnified Persons and Borrower Parties under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Securitization Indemnification. (a) Borrower Pledgor understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Pledgor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information reasonably necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower Pledgor agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower Pledgor has carefully examined the Disclosure Documents, including, without limitationportions of such memorandum or prospectus or term sheets identified by Lender that relate to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationA Collateral, the “Covered Disclosure Information”) Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, any Affiliated Manager and Guarantor and that such sections do not contain any untrue statement of a material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, any Affiliated Manager and Guarantor or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender (“Securitization Affiliate”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Securitization Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsSecuritization Affiliate Group”), and Securitization Affiliate, each of its directors and each Person who controls Securitization Affiliate within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Securitization Affiliate Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, any Affiliated Manager and Guarantor contained in such sections described in clause (A) above, or arise out of or are based upon the Covered Disclosure Information omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, any Affiliated Manager and Guarantor or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Securitization Affiliate Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender the Securitization Affiliate Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Pledgor will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Pledgor or its Affiliates in connection with the preparation of the memorandum or prospectus or in connection with the underwriting of the debt, including, without limitation, financial statements of Pledgor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnification will be in addition to any liability which Pledgor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Pledgor or its Affiliates if Pledgor does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act, Pledgor agrees to indemnify (i) Lender, the Securitization Affiliate Group and the Underwriter Group for Liabilities to which Lender, the Securitization Affiliate Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, any Affiliated Manager or Guarantor required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Securitization Affiliate Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Securitization Affiliate Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) Securitization Affiliate’s and Pledgor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Pledgor hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Pledgor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Approved Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent such information is in Borrower’s possessionpossession or control.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Covered Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Information and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitizationagent, any other co-underwriters, co-placement agents co‑underwriters or co-initial purchasers of Securities issued in the Securitizationco‑placement agents, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (ii) or based upon the Covered Disclosure Information (iii) above only to the extent that any such Liabilities arise out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with (1) the written information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), Properties and (2) those portions of the Disclosure Documents furnished to and approved by Borrower in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided the certificate furnished pursuant to Borrower for comment at least five clause (5i) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)above. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of Borrower, whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 8.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.28.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(ed) Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceedings and such settlement requires no statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of each Indemnified Person. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheldwithheld or delayed).
(fe) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 8.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.28.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.28.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph Section 8.2(e) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(gf) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 8.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.28.2.
(hg) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 8.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(ih) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary in Borrower’s possession or control (including exercising all rights to obtain information from the CPLV Tenant under the CPLV Lease) as may be reasonably requested to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) In connection with the preparation of any Disclosure Document, Borrower agrees shall, if requested in writing by Lender, confirm that Borrower has examined the Covered Disclosure Information and that such Covered Disclosure Information does not contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. The Indemnifying Persons (i) agree to provide, in connection with the Securitization, an indemnification agreement (i) a certification certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do Information and that, to Borrower’s Knowledge the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleadingmisleading (provided that, for the avoidance of doubt, the above qualification to Borrower’s Knowledge with respect to the certification shall not apply or in way affect the indemnification obligations set forth in clause (ii) below), (ii) indemnifying indemnify Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents directors and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, out-of-pocket costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become becomes subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing agree to reimburse each Indemnified Person for any out-of-pocket legal or other expenses reasonably incurred by such Indemnified Person, as they are incurredwithin ten (10) Business Days of written demand, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This The foregoing indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (i) above is provided. Notwithstanding anything to the contrary contained herein, the liability of Indemnifying Persons under this clause (b) shall not extend to any Liabilities (x) pertaining to any misstatements or omissions in any Disclosure Document other than Covered Disclosure Information requested by Lender in writing to be reviewed by Indemnifying Persons, or (y) unless Lender requested in writing that Indemnifying Persons review such Covered Disclosure Information contained in the Disclosure Document and such Covered Disclosure Information contained untrue statements or omissions constituting Liabilities hereunder and Indemnifying Persons did not identify such untrue statements or omissions.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities, provided, however, that the liability of Indemnifying Persons under this clause (c) shall not extend to any Liabilities (x) pertaining to any misstatements or omissions in any Exchange Act Filing other than Covered Disclosure Information requested by Lender in writing to be reviewed by Indemnifying Persons or (y) unless Lender requested in writing that Indemnifying Persons review such Covered Disclosure Information contained in the Exchange Act Filing and such Covered Disclosure Information contained untrue statements or omissions constituting Liabilities hereunder and Indemnifying Persons did not identify such untrue statements or omissions.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents and each guarantor agree, in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant each Disclosure Document, to the Securities Act of 1933provide an indemnification certificate, as amended set forth below, indemnifying Lender, any Issuer Person, the Issuer Group and/or the Underwriter Group (as those terms are defined below; each an “Indemnified Party” and collectively the “Securities ActIndemnified Parties”), or ) for any losses to which any Indemnified Party may become subject under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionconditions set forth below.
(b) Borrower agrees to provide, in connection with the Securitization, an The indemnification agreement certificate will provide that
(i) certifying that Borrower and each guarantor have carefully examined those sections of the Disclosure Documents relating to the following:
(A) Borrower, any SPE Equity Owner, any guarantor, any Property Manager, their respective Affiliates, the Loan and the Mortgaged Property (the “Borrower has carefully examined the Disclosure Documents, including, without limitation, Information”); and
(B) the sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such or similar sections and such other information in the Disclosure Documents (but only to the extent such information relates sections specifically refer to or includes any Provided the Borrower Information or any information regarding (the Properties“Borrower Information Sections”).
(ii) To the best of such indemnitor’s knowledge, Borrower, Mortgage Borrower, with regard to the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Borrower Information, the “Covered Disclosure Information”) Borrower Information Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is . Notwithstanding the Lender)foregoing, any Affiliate indemnification certificate may expressly exclude any information contained in third party reports prepared by parties that are not Affiliates of JPM Borrower or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act guarantor (collectively, the “Indemnified PersonsThird Party Information”), and the obligations and liability of Borrower and any guarantor pursuant to this Section shall not extend to the Third Party Information.
(c) Borrower’s and each guarantor’s agreement to indemnify the Indemnified Parties for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) losses to which any such Indemnified Person Party may become subject insofar as the Liabilities will extend only to such losses that arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents or arise out of or are based upon the omission or alleged omission to state in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents a material fact required to be stated therein or in such sections necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading (collectively, “Securities Liabilities”).
(d) ▇▇▇▇▇▇▇▇ and (iii) agreeing each guarantor agrees to reimburse each any Indemnified Person Party for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Party in connection with investigating or defending the Liabilities providedSecurities Liabilities.
(e) The indemnitors will be liable under clauses (b), however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information (c) and (d) above only to the extent that such Securities Liabilities arise out of of, or are based upon upon, any such untrue statement or omission made in the Covered Disclosure Information Documents in reliance upon upon, and in conformity with information with, Borrower Information furnished to Lender or such Noteholder any Indemnified Party by or on behalf of Borrower or a guarantor in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower Borrower, any SPE Equity Owner or any guarantor, and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five Mortgaged Property.
(5f) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be is in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) have and (iii) above shall be effective whether or not an indemnification agreement certificate described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading provided and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim applicable based on information previously provided by or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person Borrower or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) guarantor if the allocation provided by clause (x) above indemnification certificate is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationprovided.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination For purposes of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.Section:
Appears in 1 contract
Sources: Multifamily Mortgage, Assignment of Rents and Security Agreement (Steadfast Income REIT, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in of the Disclosure Documents regarding the Property, Borrower, Manager and/or the Loan (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyInformation) (collectively with the Provided Information, the “Covered Disclosure Information”), and (B) do that the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Person” and collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or -80- expenses (including, without limitation, including legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any of the Covered Disclosure Information Documents, but only to the extent based upon Provided Information, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrower after Borrower has had an opportunity to review the Disclosure Document, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Provided Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrower after Borrower has had an opportunity to review such filing under the Exchange Act, and (ii) to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information and the Required Records may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including a prospectus or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Provided Information or Required Reports for inclusion or summary in the Disclosure Document by providing all current information pertaining to Borrower and the Properties necessary to keep the Disclosure Document accurate and complete in all material respects with respect to the extent in Borrower’s possessionsuch matters.
(b) In connection with each of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, and provided that Borrower shall have had an opportunity to review, comment upon and approve the relevant portions thereof (which approval shall be deemed given by Borrower if no more than 10 pages and not otherwise disapproved within two Business Days after delivery thereof to Borrower) Borrower agrees to provide, in connection with the Securitization, provide an indemnification agreement certificate:
(iA) certifying that (A) Borrower has carefully examined those portions of such memorandum or prospectus, as applicable, pertaining to Borrower, the Disclosure Documents, including, without limitation, Properties and the Loan which have been identified to Borrower by Lender including applicable portions of the sections entitled “Risk Factors,” “"Special Considerations,” “", "Description of the Collateral,” “Mortgages", "Description of the Mezzanine Loans,” “Mortgage Loan and Properties", "The Operating Company,” “Manager", "The Borrower” " and “"Certain Legal Aspects of the Mezzanine Loans,” Mortgage Loan", and (B) such sections (and such any other information in the Disclosure Documents (sections reasonably requested and pertaining to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, Properties or the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”Loan) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.;
Appears in 1 contract
Sources: Loan Agreement (Uniprop Manufactured Housing Communities Income Fund)
Securitization Indemnification. (a) Borrower understands that certain information provided to Lender by Borrower and its agents, counsel and representatives relating to Borrower, Senior Borrower, Guarantor, Clipper Manager or any other Manager that is an Affiliate of Borrower, Senior Borrower or Guarantor, their respective constituent owners, the Senior Collateral and the Collateral (such information, whether provided pursuant to Section 9.1 above or otherwise in connection with the Loan, collectively, the “Borrower Provided Information”; which “Borrower Provided Information” shall be deemed not to include (i) an untrue statement of any material fact contained in the Borrower Provided Third Party Report, except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Third Party Report that the Borrower Provided Third Party Report contained such untrue statement of material fact and Borrower failed to alert Lender to same, or (ii) an omission of a material fact in the Borrower Provided Third Party Report (which omission shall be deemed material if such fact should have been included in the Borrower Provided Third Party Report in order to make the statements, in light of the circumstances under which they were made, not misleading), except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Information Third Party Report that the Borrower Provided Third Party Report reflected such omission and Borrower failed to alert Lender to same) may be included in Disclosure Documents preliminary and final disclosure documents in connection with the Securitization any Secondary Market Transaction, including a Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agenciesinvestment banking firms, NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to the any Secondary Market Transaction, including a Securitization. In the event Borrower also understands that the Disclosure Document is required to findings and conclusions of any third-party due diligence report obtained by the Lender, the Issuer or the Securitization placement agent or underwriter may be revised prior to made publicly available if required, and in the sale of all Securitiesmanner prescribed, Borrower will cooperate with the holder by Section 15E(s)(4)(A) of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate Exchange Act and complete in all material respects to the extent in Borrower’s possessionany rules promulgated thereunder.
(b) Borrower hereby agrees to provideindemnify Lender (and for purposes of this Section 9.2, in connection with Lender shall include the Securitizationinitial agent, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documentsinitial lenders, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” their successors and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitizationassigns, and each of their respective officers, officers and directors, partners, employees, representatives, agents and Affiliates ) and each Person or entity who controls any such Person the Lender within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based upon upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon Borrower Provided Information, (B) the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the Borrower Provided Information or necessary in order to make the statements in the Covered Disclosure Borrower Provided Information, in light of the circumstances under which they were made, not misleading misleading, or (C) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this Agreement (Full and Accurate Disclosure); except, in each case, that (I) Borrower’s obligation to indemnify for any Liabilities that arise in connection with a Disclosure Document that derives in part from information contained in Borrower Provided Information and in part from information either prepared by the Lender Group, the Issuer, the Underwriter Group or any other Person shall be limited to any untrue statement or omission of material fact contained in Borrower Provided Information known to Borrower that results directly from the Borrower Provided Information (or omission from the Borrower Provided Information) and (iiiII) agreeing Borrower shall have no responsibility for (w) any statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to (or requested changes to) in writing to Lender or that were derived from Borrower Provided Third Party Reports, (x) numbers which have been submitted by Borrower and adjusted by any Indemnified Person from those submitted by Borrower, to the extent of such adjustment, (y) third party reports, such as environmental and physical condition reports that do not constitute Borrower Provided Third Party Reports, and (z) any financial projections. Borrower also agrees to reimburse each Indemnified Person Lender, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurredthe Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities providedLiabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, howeveror is based upon, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in the Covered Disclosure Information in reliance upon upon, and in conformity with with, information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower and Senior Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement indemnification provision will be in addition to any liability which Borrower may otherwise have. MoreoverBorrower acknowledges and agrees that any Person that is included in the Lender Group, the indemnification provided for in clauses (ii) and (iii) above Issuer and/or the Underwriter Group that is not a direct party to this Agreement shall be effective whether or not an deemed to be a third-party beneficiary to this Agreement with respect to this Section 9.2(b). Within five (5) Business Days after Lender’s written request, Borrower and Guarantor shall execute and deliver to Lender a separate indemnification and reimbursement agreement described in clause (i) above is providedfavor of the Lender Group, the Issuer and the Underwriter Group in form and substance consistent with the indemnification and reimbursement obligations of Borrower under this Section 9.2(b).
(c) In connection with filings under the any Exchange Act (if any)Filing or other reports containing comparable information that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to indemnify (i) indemnify Lender, the Indemnified Persons Lender Group, the Issuer and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the Lender Group, the Issuer and/or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based upon any upon, an alleged untrue statement or alleged omission or an untrue statement or omission made in reliance upon, and in conformity with, Borrower Provided Information furnished to Lender by or on behalf of any material fact Borrower in connection with the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light preparation of the circumstances under which they were madeDisclosure Document or in connection with the underwriting or closing of the Loan, not misleading including financial statements of Borrower and Senior Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse each Indemnified Person Lender, the Lender Group, the Issuer and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurredthe Lender Group, the Issuer and/or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person such indemnified party pursuant to the immediately preceding sentence of its election to assume the defense of this Section 9.2(d), such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) any other indemnified party. Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no indemnifying party shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the indemnifying party shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings. As long , and such settlement requires no statement as Borrower has complied with its obligations to, or an admission of, fault, culpability or a failure to defend and indemnify hereunderact, Borrower shall not be liable for any settlement made by any or on behalf of the Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld)Party.
(fe) Borrower agrees that if any indemnification In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.2(b) or reimbursement sought pursuant to this Section 9.2 (c) is finally judicially determined to be unavailable for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or is insufficient action in respect thereof) referred to hold any Indemnified Person harmless therein which would otherwise be indemnifiable under Section 9.2(b) or (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered:
(i) the Issuer’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Lender and Borrower agrees hereby agree that in it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. In no event shall Borrower be required to indemnify and indemnified party with respect to any matter to the amount to be contributed by extent arising from the Indemnified Persons collectively pursuant to this paragraph exceed the amount gross negligence or willful misconduct of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationan indemnified party.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Second Mezzanine Loan Agreement (Clipper Realty Inc.)
Securitization Indemnification. (a) Borrower Pledgor understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Pledgor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information reasonably necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower Pledgor agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower Pledgor has carefully examined the Disclosure Documents, including, without limitationportions of such memorandum or prospectus or term sheets identified by Lender that relate to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationA Collateral, the “Covered Disclosure Information”) Mezzanine B Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, any Affiliated Manager and Guarantor and that such sections do not contain any untrue statement of a material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, any Affiliated Manager and Guarantor or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender (“Citigroup”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsCitigroup Group”), and Citigroup, each of its directors and each Person who controls Citigroup within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, any Affiliated Manager and Guarantor contained in such sections described in clause (A) above, or arise out of or are based upon the Covered Disclosure Information omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, any Affiliated Manager and Guarantor or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Citigroup Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender the Citigroup Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Pledgor will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Pledgor or its Affiliates in connection with the preparation of the memorandum or prospectus or in connection with the underwriting of the debt, including, without limitation, financial statements of Pledgor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnification will be in addition to any liability which Pledgor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Pledgor or its Affiliates if Pledgor does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act, Pledgor agrees to indemnify (i) Lender, the Citigroup Group and the Underwriter Group for Liabilities to which Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, any Affiliated Manager or Guarantor required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Citigroup Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Citigroup Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) Citigroup’s and Pledgor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Pledgor hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Pledgor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects respects, subject to the extent terms and conditions contained in Borrower’s possessionSection 13.4.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has and Borrower Principal have carefully examined the Disclosure Documentsspecific sections of any memorandum or prospectus describing or disclosing the Property Information (which specific sections shall be provided by Lender) which shall only relate to Borrower, includingBorrower Principal, without limitationManager, their Affiliates, the sections entitled “Risk Factors,” “Special Considerations,” “Description Loan, the Loan Documents and the Property, and that, to the best of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) 's knowledge, such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; provided, however, Borrower shall not make any representations or warranties concerning the truth, accuracy or completeness of any information or reports prepared by a third party, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization"ISSUER PERSON"), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"ISSUER GROUP"), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “Liabilities”)"UNDERWRITER GROUP") for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses directly arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not materially misleading (collectively the "SECURITIES LIABILITIES") and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and Issuer Group in connection with investigating or defending the Liabilities Securities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Securities Liabilities arise out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the Disclosure Documents memorandum or prospectus or other document (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls Property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate so long as Lender provides Borrower with the disclosure thereof and prospectus as set forth in this Section 13.5(b).
(c) In connection with the initial filings under the Exchange Act (if any)in connection with a Securitization of the Loan, Borrower agrees and Borrower Principal agree to indemnify (i) Lender, the Indemnified Persons Issuer Group and the Underwriter Group for Liabilities Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based solely upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information delivered to Lender prior to the Securitization a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities; provided that in the event that such filings under the Exchange Act contain information in a form not previously reviewed by Borrower, then Lender shall provide Borrower with a copy of such filings for its approval of the content thereof prior to submitting the same.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, so long as there is not a conflict of interest between the Indemnified Personindemnifying party and any indemnified party or parties, as reasonably determined by counsel to such indemnified party or parties, the indemnified party or parties shall not engage additional counsel to assume such defense on behalf of the related indemnifying party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, and that there is a conflict of interest between the indemnified party or parties and the indemnifying party, as reasonably determined by counsel to such indemnified party or parties, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(b) or Section 13.5(c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(b) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) the indemnified party's, Borrower's and Borrower Principal's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything . The liabilities and obligations of Borrower Principal under this Section 13.5 and any certificate provided pursuant to the contrary contained hereinterms hereof shall only survive until November 30, Borrower 2006 and then shall have terminate and be of no obligation to act as depositor further force and effect with respect to the Loan or an issuer or registrant with respect any matters for which written claims have not been made against Borrower Principal prior to the Securities issued in any SecuritizationNovember 30, 2006.
Appears in 1 contract
Sources: Loan Agreement (Sun Communities Inc)
Securitization Indemnification. (a) Borrower understands that certain of the information provided to Lender in connection with the Loan (collectively, the “Provided Information Information”) may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (Bincluding risk factors) such sections and such other information in the Disclosure Documents (pertaining to the extent such information relates to or includes any Provided Information or any information regarding Loan, the PropertiesLoan Documents, Borrower, Mortgage the Borrower, the CollateralCondominium Documents, the Senior Mezzanine Collateral and/or Operating Company) Ground Leases and the Properties and such sections (collectively with the Provided Information, the “Covered Disclosure Information”and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as securitization (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇, each of its directors and each Person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and ▇▇▇▇▇▇ in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons ▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would
(i) ▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out equitable if the amount of such claim, action, suit contribution were determined by pro rata or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld)per capita allocation.
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, solely with respect to the Disclosure Documentsfactual contents thereof related to the Loan, the Mortgage Loan, Borrower, any Loan Party, Guarantor, Manager, the Property, the Collateral and the Provided Information, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender (“Citigroup”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsCitigroup Group”), and Citigroup, each of its directors and each Person who controls Citigroup within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above (but solely with respect to the Covered Disclosure Information factual contents thereof related to the Loan, the Mortgage Loan, Borrower, any Loan Party, Guarantor, Manager, the Property, the Collateral and the Provided Information), or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections (as they relate to such matters) or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Citigroup Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the Citigroup Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons Citigroup Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the Citigroup Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Citigroup Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) Citigroup’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(gf) Borrower agrees that Notwithstanding anything to the indemnificationcontrary contained in this Section 9.2, contribution and reimbursement obligations set forth nothing contained in this Section 9.2 shall apply whether impose liability upon Borrower for any losses, claims, damages or liability arising out of or based upon an untrue statement of any material fact contained in any statement, report or document provided to Lender on behalf of Borrower by a party who is not any Indemnified Person is an Affiliate of Borrower (a formal party “Third Party Report”), unless Borrower had actual knowledge at the time Borrower provided such statement, report or document to any lawsuits, claims or other proceedings. Borrower further agrees Lender that the Indemnified Persons are intended third party beneficiaries under this Section 9.2such Third Party Report contains such untrue statement.
(hg) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Securitization Indemnification. (a) Borrower understands that certain information provided to Lender by Borrower and its agents, counsel and representatives relating to Borrower, Mortgage Borrower, Guarantor, Clipper Manager or any other Manager that is an Affiliate of Borrower, Mortgage Borrower or Guarantor, their respective constituent owners, the Property and the Collateral (such information, whether provided pursuant to Section 9.1 above or otherwise in connection with the Loan, collectively, the “Borrower Provided Information”; which “Borrower Provided Information” shall be deemed not to include (i) an untrue statement of any material fact contained in the Borrower Provided Third Party Report, except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Third Party Report that the Borrower Provided Third Party Report contained such untrue statement of material fact and Borrower failed to alert Lender to same, or (ii) an omission of a material fact in the Borrower Provided Third Party Report (which omission shall be deemed material if such fact should have been included in the Borrower Provided Third Party Report in order to make the statements, in light of the circumstances under which they were made, not misleading), except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Information Third Party Report that the Borrower Provided Third Party Report reflected such omission and Borrower failed to alert Lender to same) may be included in Disclosure Documents preliminary and final disclosure documents in connection with the Securitization any Secondary Market Transaction, including a Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agenciesinvestment banking firms, NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to the any Secondary Market Transaction, including a Securitization. In the event Borrower also understands that the Disclosure Document is required to findings and conclusions of any third-party due diligence report obtained by the Lender, the Issuer or the Securitization placement agent or underwriter may be revised prior to made publicly available if required, and in the sale of all Securitiesmanner prescribed, Borrower will cooperate with the holder by Section 15E(s)(4)(A) of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate Exchange Act and complete in all material respects to the extent in Borrower’s possessionany rules promulgated thereunder.
(b) Borrower hereby agrees to provideindemnify Lender (and for purposes of this Section 9.2, in connection with Lender shall include the Securitizationinitial agent, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documentsinitial lenders, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” their successors and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitizationassigns, and each of their respective officers, officers and directors, partners, employees, representatives, agents and Affiliates ) and each Person or entity who controls any such Person the Lender within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based upon upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon Borrower Provided Information, (B) the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the Borrower Provided Information or necessary in order to make the statements in the Covered Disclosure Borrower Provided Information, in light of the circumstances under which they were made, not misleading misleading, or (C) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this Agreement (Full and Accurate Disclosure); except, in each case, that (I) Borrower’s obligation to indemnify for any Liabilities that arise in connection with a Disclosure Document that derives in part from information contained in Borrower Provided Information and in part from information either prepared by the Lender Group, the Issuer, the Underwriter Group or any other Person shall be limited to any untrue statement or omission of material fact contained in Borrower Provided Information known to Borrower that results directly from the Borrower Provided Information (or omission from the Borrower Provided Information) and (iiiII) agreeing Borrower shall have no responsibility for (w) any statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to (or requested changes to) in writing to Lender or that were derived from Borrower Provided Third Party Reports, (x) numbers which have been submitted by Borrower and adjusted by any Indemnified Person from those submitted by Borrower, to the extent of such adjustment, (y) third party reports, such as environmental and physical condition reports that do not constitute Borrower Provided Third Party Reports, and (z) any financial projections. Borrower also agrees to reimburse each Indemnified Person Lender, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurredthe Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities providedLiabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, howeveror is based upon, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in the Covered Disclosure Information in reliance upon upon, and in conformity with with, information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower and Mortgage Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement indemnification provision will be in addition to any liability which Borrower may otherwise have. MoreoverBorrower acknowledges and agrees that any Person that is included in the Lender Group, the indemnification provided for in clauses (ii) and (iii) above Issuer and/or the Underwriter Group that is not a direct party to this Agreement shall be effective whether or not an deemed to be a third-party beneficiary to this Agreement with respect to this Section 9.2(b). Within five (5) Business Days after Lender’s written request, Borrower and Guarantor shall execute and deliver to Lender a separate indemnification and reimbursement agreement described in clause (i) above is providedfavor of the Lender Group, the Issuer and the Underwriter Group in form and substance consistent with the indemnification and reimbursement obligations of Borrower under this Section 9.2(b).
(c) In connection with filings under the any Exchange Act (if any)Filing or other reports containing comparable information that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to indemnify (i) indemnify Lender, the Indemnified Persons Lender Group, the Issuer and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the Lender Group, the Issuer and/or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based upon any upon, an alleged untrue statement or alleged omission or an untrue statement or omission made in reliance upon, and in conformity with, Borrower Provided Information furnished to Lender by or on behalf of any material fact Borrower in connection with the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light preparation of the circumstances under which they were madeDisclosure Document or in connection with the underwriting or closing of the Loan, not misleading including financial statements of Borrower and Mortgage Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse each Indemnified Person Lender, the Lender Group, the Issuer and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurredthe Lender Group, the Issuer and/or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person such indemnified party pursuant to the immediately preceding sentence of its election to assume the defense of this Section 9.2(d), such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) any other indemnified party. Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no indemnifying party shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the indemnifying party shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings. As long , and such settlement requires no statement as Borrower has complied with its obligations to, or an admission of, fault, culpability or a failure to defend and indemnify hereunderact, Borrower shall not be liable for any settlement made by any or on behalf of the Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld)Party.
(fe) Borrower agrees that if any indemnification In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.2(b) or reimbursement sought pursuant to this Section 9.2 (c) is finally judicially determined to be unavailable for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or is insufficient action in respect thereof) referred to hold any Indemnified Person harmless therein which would otherwise be indemnifiable under Section 9.2(b) or (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered:
(i) the Issuer’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Lender and Borrower agrees hereby agree that in it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. In no event shall Borrower be required to indemnify and indemnified party with respect to any matter to the amount to be contributed by extent arising from the Indemnified Persons collectively pursuant to this paragraph exceed the amount gross negligence or willful misconduct of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationan indemnified party.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents and each guarantor agree, in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant each Disclosure Document, to the Securities Act of 1933provide an indemnification certificate, as amended (the “Securities Act”)set forth below, or the Securities and Exchange Act of 1934indemnifying Lender, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securitiesany Issuer Person, the Rating Agencies, Issuer Group and/or the Underwriter Group (as those terms are defined below; each an “Indemnified Party” and service providers relating collectively the (“Indemnified Parties”) for any losses to which any Indemnified Party may become subject under the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionconditions set forth below.
(b) Borrower agrees to provide, in connection with the Securitization, an The indemnification agreement certificate will provide that
(i) certifying that Borrower and each guarantor have carefully examined those sections of the Disclosure Documents relating to the following:
(A) Borrower, any SPE Equity Owner, any guarantor, any Property Manager, their respective Affiliates, the Loan and the Mortgaged Property (the “Borrower has carefully examined the Disclosure Documents, including, without limitation, Information”); and
(B) the sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such or similar sections and such other information in the Disclosure Documents (but only to the extent such information relates sections specifically refer to or includes any Provided the Borrower Information or any information regarding (the Properties“Borrower Information Sections”).
(ii) To the best of such indemnitor’s knowledge, Borrower, Mortgage Borrower, with regard to the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Borrower Information, the “Covered Disclosure Information”) Borrower Information Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is . Notwithstanding the Lender)foregoing, any Affiliate indemnification certificate may expressly exclude any information contained in third party reports prepared by parties that are not Affiliates of JPM Borrower or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act guarantor (collectively, the “Indemnified PersonsThird Party Information”), and the obligations and liability of Borrower and any guarantor pursuant to this Section shall not extend to the Third Party Information.
(c) Borrower’s and each guarantor’s agreement to indemnify the Indemnified Parties for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) losses to which any such Indemnified Person Party may become subject insofar as the Liabilities will extend only to such losses that arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents or arise out of or are based upon the omission or alleged omission to state in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents a material fact required to be stated therein or in such sections necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading (collectively, “Securities Liabilities”).
(d) Borrower and (iii) agreeing each guarantor agrees to reimburse each any Indemnified Person Party for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Party in connection with investigating or defending the Liabilities providedSecurities Liabilities.
(e) The indemnitors will be liable under clauses (b), however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information (c) and (d) above only to the extent that such Securities Liabilities arise out of of, or are based upon upon, any such untrue statement or omission made in the Covered Disclosure Information Documents in reliance upon upon, and in conformity with information with, Borrower Information furnished to Lender or such Noteholder any Indemnified Party by or on behalf of Borrower or a guarantor in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower Borrower, any SPE Equity Owner or any guarantor, and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five Mortgaged Property.
(5f) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be is in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) have and (iii) above shall be effective whether or not an indemnification agreement certificate described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading provided and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim applicable based on information previously provided by or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person Borrower or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) guarantor if the allocation provided by clause (x) above indemnification certificate is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationprovided.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination For purposes of this Agreement and the satisfaction and discharge of the Debt.Section:
(i) Notwithstanding anything to the contrary contained herein, Borrower The term “Lender” shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitizationinclude its officers and directors.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Collateral, the Properties, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM BSCMI (whether or not it is the Lender), any Affiliate of JPM or a Noteholder BSCMI that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder BSCMI that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of the Indemnifying Persons whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question BSCMI (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person BSCMI reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xii) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in the Disclosure Documents Document in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees Borrower, each Principal and Guarantor agree to provide, provide in connection with each of (i) a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus or prospectus supplement, (iii) such other offering materials as may be used for the Securitizationsecuritization of the Loan (such materials described in clauses (i), (ii) or (iii), as applicable, being hereinafter referred to collectively as the "Offering Materials"), an indemnification agreement certificate (iA) certifying that (A) Borrower has Borrower, each Principal and Guarantor have carefully examined the Disclosure DocumentsOffering Materials, including, including without limitation, the sections entitled “Risk Factors,” “"Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “" "The Operating CompanyManager,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " and (B) that such sections (and any other sections reasonably requested) and such other information in the Disclosure Documents (to the extent such information relates Offering Materials as they relate to or includes include any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, and as they relate to the “Covered Disclosure Information”) Property, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender ("Credit Suisse First Boston") that has filed any the registration statement relating to the Securitization or has acted as securitization (the sponsor or depositor in connection with the Securitization"Registration Statement"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"Credit Suisse First Boston Group"), and Credit Suisse First Boston, each of its directors and each Person who controls Credit Suisse First Boston within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "Underwriter Group") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “"Liabilities”)") to which any such Indemnified Person Credit Suisse First Boston, the Credit Suisse First Boston Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Credit Suisse First Boston Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and Credit Suisse First Boston in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and operating statements statements, rent rolls, environmental site assessment reports and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (provided and shall be applicable based on information previously provided by Borrower or its Affiliates if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, does not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under provide the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personcertificate.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Pennsylvania Real Estate Investment Trust)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document with respect to the Loan accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (the “Indemnification Agreement”) (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, including the sections entitled “Risk Factors,” “Special Considerations,” Consideration”, “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (only to the extent such information relates to or includes any Provided Information or any information regarding specific to the PropertiesLoan, the Loan Documents, Borrower, Mortgage Borrower, Maryland Owner, the Collateral, the Senior Mezzanine Collateral and/or Property, Master Tenant, Operator, Guarantor and the Master Lease and the Operating CompanyLease) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each NoteholderJPMorgan, JPM (whether CS, BofA, or not it is the Lender), any Affiliate of JPM Lender, JPMorgan, CS or a Noteholder BofA that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, or any Affiliate of JPM Lender, JPMorgan, CS or a Noteholder BofA that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, including reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any reasonable legal fees or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise havehave pursuant to the Loan Documents or applicable law. Moreover, the indemnification Indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above Indemnification Agreement is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any reasonable legal fees or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person and shall have the right to negotiate and enter into and/or consent to any settlement, subject to the prior approval of Lender and, if different, the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person Lender, JPMorgan, CS and BofA (in question (each case which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender, JPMorgan, CS and BofA, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) proceeds actually received by the Indemnified Persons in connection with the closing sale of the Loan or portion thereof pursuant to the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall not have no any obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Hcp, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansLoan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Collateral, the Properties, Borrower, Baltimore Owner, Guarantor, Mortgage Principal, Mortgage Borrower, the CollateralManager, the Senior Loan, any other Mezzanine Collateral Loan and/or Operating Companythe Mortgage Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not (and with respect to any portion of the Disclosure Documents prepared in reliance on the reports of third parties, to the best of their knowledge do not) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, a placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing other than a statement or omission based upon the reports of third parties that do not to reimburse each the Indemnified Person for Persons knowledge contain any legal untrue statement or other expenses incurred by such Indemnified Person, as they are incurredomission of a material fact necessary in order to make the statements made, in connection with investigating or defending light of the Liabilities circumstances under which they were made, not misleading) provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information Indemnified Persons will be liable in any case above but only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information thereon in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower and its Affiliates in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Securitization, including, without limitation limitation, financial statements of Borrower or its Affiliates, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties)Properties (other than third party reports which to the Borrower’s knowledge do not contain any untrue statement or omission of a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading) but excluding any projections made in good faith by Borrower or its Affiliates; and provided that this Section shall not apply to any Liabilities to the extent arising out of any untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission made in reliance upon and in no event connection with the written information furnished to Borrower or its Affiliates by Lender or any Indemnified Person expressly for use in the Disclosure Documents unless Borrower, or Guarantor fails to correct any such untrue statement, misstatement or omission with respect to Borrower, Guarantor or their Affiliates that is known to Borrower or Guarantor or that, with the exercise of customary reasonable efforts, should be known to Borrower or Guarantor and (iii) agreeing to reimburse each Indemnified Person for any legal or other out-of-pocket expenses reasonably incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, Disclosure Documents shall not inure to the benefit of any Indemnified Person if Borrower be liable for Liabilities arising or its Affiliates shall sustain the burden of proving that any such loss, liability, claim, damager or expense resulted from information contained in the fact that a Disclosure Document that Person was not provided to Borrower for comment with a copy of the final Disclosure Documents at least five (5) Business Days or prior to its dissemination the written confirmation of the sale of such securities to such Person and the loss, liability, claim, damage or on which Borrower provided comments to Lender expense resulted from an untrue statement or misstatement contained in, or omission from, the preliminary Disclosure Documents that were corrected in writing and Lender failed to incorporate such comments (assuming such comments were accurate)the final Disclosure Documents. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Wyndham International Inc)
Securitization Indemnification. (a) Each of Borrower and Equity Owner understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Equity Owner will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement in form reasonably satisfactory to Lender and the Indemnifying Persons (i) certifying that (A) Borrower each Indemnifying Person has carefully examined those portions of the Disclosure Documents, includingDocuments specified by Lender and provided to such Indemnifying Person which may include, without limitation, the sections entitled “Risk Factors,” ”, “Special Considerations,” ”, “Description of the Security Instruments”, “Description of the Mortgage Loans and Mortgaged Property”, “Description of the Collateral,” “Description of the Mezzanine LoansLoan,” “The Ground Lease,” “The Master Lease,” “The Operating CompanyLease,” “The Condominiums,” “The Manager”, “The Borrower,” “The Ground Lessee”,” “The Master Lessee,” “The Operating Lessee”, “Description of the Mortgage Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Mortgage Loan”, and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesProperty, the Collateral, Borrower, Equity Owner, Mortgage Borrower, the CollateralOperating Lessee, Operating Lessee Pledgor, Manager which is an Affiliate of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor, the Senior Mezzanine Collateral Mortgage Loan and/or Operating Companythe Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do ), and such Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM Credit Suisse (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon (x) the Covered Disclosure Information Indemnifying Person will be liable in any such case under Section 9.1.4(b) only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower the Indemnifying Person in connection with the preparation of the Disclosure Documents Document, (y) the Indemnifying Person shall not be obligated to provide the certification set forth herein or be liable hereunder if such Indemnifying Person has not been afforded reasonable time under the circumstances to review and comment on the applicable sections of the applicable Disclosure Document, and (z) no Indemnifying Person shall be liable in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls above with respect to any statement or omission or any failure of Lender to accurately transcribe any portion of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Covered Disclosure Document that was not Information provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate by such comments (assuming such comments were accurate)Indemnifying Person. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under any filing pursuant to the Exchange Act (if any)in connection with or relating to the Securitization, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities; provided, however, that (x) the Indemnifying Person will be liable in any such case under Section 9.2(c) only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of the Indemnifying Person in connection with the preparation of the Disclosure Document, (y) the Indemnifying Person shall not be obligated to provide the certification set forth herein or be liable hereunder if such Indemnifying Person has not been afforded reasonable time under the circumstances to review and comment on the applicable sections of the applicable Disclosure Document, and (z) no Indemnifying Person shall be liable in connection with the above with respect to any statement or omission or any failure of Lender to accurately transcribe any portion of the Covered Disclosure Information provided by such Indemnifying Person.
(d) Borrower shall indemnify Lender and each of its respective officers, directors, partners, employees, representatives involved in the origination of the Loan or the Securitization, agents and Affiliates against any liabilities to which Lender, each of its respective officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the liabilities arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of the Borrowers and Equity Owner to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading.
(e) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another is an actual conflict of interest between the Indemnified PersonParties seeking separate representation.
(ef) Without the prior written consent of the Indemnified Person in question Credit Suisse (which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Credit Suisse reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(g) (f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(gh) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hi) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(ij) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideUpon Lender’s reasonable request, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) Borrower has carefully certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the Disclosure Documents, including, without limitationLoan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, Borrowerthe IP, Mortgage Borrowerthe First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationManagers, the “Covered Disclosure Information”) do Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether Lender or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the Covered Disclosure Information Properties, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements in the Covered Disclosure Informationtherein, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Borrowers will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the any Disclosure Documents Document(s) or in connection with the underwriting or the closing of the Loan (including or in the ordinary course of the Loan, including, without limitation limitation, financial statements of Borrower and any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the Covered Disclosure InformationLoan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in the Covered any such Disclosure Information Document a material fact in any Loan Party’s actual knowledge, required to be stated therein or necessary in such Disclosure Document in order to make the statements in the Covered such Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties.
(d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of any claim or the commencement of any action, the such Indemnified Person shallwill, if a claim in respect thereof is to be made against BorrowerBorrowers under this Section 9.3, notify Borrower Borrowers in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that the failure omission to so notify Borrower shall Borrowers will not relieve it any Borrower from any liability which it any Borrower may have under the indemnification provisions of this Section 9.2 to any Indemnified Person hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes material prejudice to any liability which it may have to an Indemnified Person otherwise than under Borrower. In the provisions of this Section 9.2. If event that any such claim or action shall be is brought against an any Indemnified Person, and it shall notify Borrower notifies Borrowers of the commencement thereof, Borrower shall Borrowers will be entitled to participate therein and, to the extent that it wishesthey may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Person. After notice from any Borrower Borrowers to an such Indemnified Person of its election to assume the defense of under this Section 9.3, such claim or action, Borrower shall not be liable to the Indemnified Person shall pay for any legal or other expenses subsequently incurred by the such Indemnified Person in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, Indemnified Person and one or more Indemnified Persons on any Borrower and the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or in addition additional to those available to BorrowerBorrowers, the Indemnified Person or Persons Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or PersonsPerson(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Lender, (which consent shall not be unreasonably withheld), no Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Borrowers shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower has Borrowers have complied with its their obligations to defend and indemnify hereunder, Borrower Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Borrowers (which consent shall not be unreasonably withheld).
(f) Borrower agrees Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.3), then BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerBorrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section 9.29.3, (A) no party Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Borrowers further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.3.
(h) The Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of the Indemnified Persons Borrowers and Borrower Lender under this Section 9.2 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Securitization Indemnification. (a) Borrower understands and Baltimore Owner understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Baltimore Owner will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage BorrowerBaltimore Owner, Guarantor, Principal, Manager, Franchisor (and/or the CollateralLoan), other than information regarding other loans and assets in a pool of loans which includes the Senior Mezzanine Collateral and/or Operating Company) Loan (collectively with the Provided Information, the “Covered Disclosure Information”) do not (and with respect to any portion of the Disclosure Documents prepared in reliance on the reports of third parties, to the best of their knowledge do not) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, a placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing other than a statement or omission based upon the reports of third parties that do not to reimburse each the Indemnified Person for Persons knowledge contain any legal untrue statement or other expenses incurred by such Indemnified Person, as they are incurredomission of a material fact necessary in order to make the statements made, in connection with investigating or defending light of the Liabilities circumstances under which they were made, not misleading) provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information Indemnified Persons will be liable in any case above but only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information thereon in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrower, Baltimore Owner and their Affiliates in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Securitization, including, without limitation limitation, financial statements of Borrower Borrower, Baltimore Owner or their Affiliates, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties)Properties (other than third party reports which to the Borrower’s and Baltimore Owner’s knowledge do not contain any untrue statement or omission of a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading) but excluding any projections made in good faith by Borrower, Baltimore Owner or their Affiliates; and provided that this Section shall not apply to any Liabilities to the extent arising out of any untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission made in reliance upon and in no event connection with the written information furnished to Borrower, Baltimore Owner or their Affiliates by Lender or any Indemnified Person expressly for use in the Disclosure Documents unless Borrower, Baltimore Owner, Principal, or Guarantor fails to correct any such untrue statement, misstatement or omission that is known to Borrower, Baltimore Owner, Principal or Guarantor or that, with the exercise of customary reasonable efforts, should be known to Borrower, Baltimore Owner, Principal or Guarantor and (iii) agreeing to reimburse each Indemnified Person for any legal or other out-of-pocket expenses reasonably incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, Disclosure Documents shall Borrower be liable for Liabilities arising not inure to the benefit of any Indemnified Person if Borrower, Baltimore Owner or their Affiliates shall sustain the burden of proving that any such loss, liability, claim, damager or expense resulted from information contained in the fact that a Disclosure Document that Person was not provided to Borrower for comment with a copy of the final Disclosure Documents at least five (5) Business Days or prior to its dissemination the written confirmation of the sale of such securities to such Person and the loss, liability, claim, damager or on which Borrower provided comments to Lender expense resulted from an untrue statement or misstatement contained in, or omission from, the preliminary Disclosure Documents that were corrected in writing and Lender failed to incorporate such comments (assuming such comments were accurate)the final Disclosure Documents. This indemnity agreement will be in addition to any liability which Borrower and Baltimore Owner may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (ai) Borrower understands that certain of the Provided Information may be included in Disclosure Documents and each Guarantor agree to provide in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933each Disclosure Document, an indemnification certificate, as amended set forth in Section 10.02(d)(ii), indemnifying Lender, any Issuer Person, the Issuer Group and/or the Underwriter Group (as those terms are defined in Section 10.02(d)(vii)) each an “Indemnified Party,” and collectively the “Securities ActIndemnified Parties”), or ) for any losses to which any Indemnified Party may become subject under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors conditions set forth in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionthis Section.
(bii) Borrower agrees to provide, in connection with the Securitization, an The indemnification agreement (i) certifying that certificate will provide that:
(A) Borrower has and each Guarantor have carefully examined those sections of the Disclosure DocumentsDocuments relating to the following:
(1) Borrower, includingany general partner, without limitationany SPE Equity Owner, [USE FOR SENIORS: any operator of the Facility,] any Guarantor, any Property Manager, their respective Affiliates, the Loan and the Mortgaged Property (“Borrower Information”).
(2) The sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such or similar sections and such other information in the Disclosure Documents (but only to the extent such information relates sections specifically refer to or includes any Provided Borrower Information or any information regarding (“Borrower Information Sections”).
(B) To the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively best of such indemnitor’s knowledge with the Provided regard to Borrower Information, the “Covered Disclosure Information”) Borrower Information Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is . Notwithstanding the Lender)foregoing, any Affiliate indemnification certificate may expressly exclude any information contained in third party reports prepared by parties that are not Affiliates of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the SecuritizationBorrower, any Affiliate of JPM general partner or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Guarantor (collectively, the “Indemnified PersonsThird Party Information”), and the obligations and liability of Borrower and any Guarantor pursuant to this Section will not extend to the Third Party Information.
(iii) Borrower’s and each Guarantor’s agreement to indemnify the Indemnified Parties for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) losses to which any such Indemnified Person Party may become subject insofar as the Liabilities will extend only to such losses that arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents or arise out of or are based upon the omission or alleged omission to state in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents a material fact required to be stated therein or in such sections necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading (collectively, “Securities Liabilities”).
(iv) Borrower and (iii) agreeing each Guarantor agrees to reimburse each any Indemnified Person Party for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Party in connection with investigating or defending the Liabilities providedSecurities Liabilities.
(v) The indemnitors will be liable under Section 10.02(d) (ii), however, that Borrower shall have liability with respect to Liabilities arising out of (iii) or based upon the Covered Disclosure Information (iv) only to the extent that such Securities Liabilities arise out of of, or are based upon upon, any such untrue statement or omission made in the Covered Disclosure Information Documents in reliance upon upon, and in conformity with information with, Borrower Information furnished to Lender or such Noteholder any Indemnified Party by or on behalf of Borrower or a Guarantor in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower Borrower, any general partner, any SPE Equity Owner or any Guarantor, and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five Mortgaged Property.
(5vi) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be is in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) have and (iii) above shall will be effective whether or not an indemnification agreement certificate described in clause (ithis Section 10.02(d) above is provided and will be applicable based on information previously provided by or on behalf of Borrower or a Guarantor if the indemnification certificate is not provided.
(cvii) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions For purposes of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.10.02(d):
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “"Risk Factors,” “" "Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “" "The Operating CompanyManager,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, Borrower and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”"COVERED DISCLOSURE INFORMATION") do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM CSFB (whether or not it is the Lender), any Affiliate of JPM or a Noteholder CSFB that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder CSFB that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"INDEMNIFIED PERSONS"), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”"LIABILITIES")) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under , provided that Borrower has been given the Exchange Act (if any), Borrower agrees opportunity to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in review the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary in Borrower’s possession or control (including exercising all rights to obtain information from the CPLV Tenant under the CPLV Lease) as may be reasonably requested to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) In connection with the preparation of any Disclosure Document, Borrower agrees shall, if requested in writing by Lender, confirm that Borrower has examined the Covered Disclosure Information and that such Covered Disclosure Information does not contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. The Indemnifying Persons (i) agree to provide, in connection with the Securitization, an indemnification agreement (i) a certification certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do Information and that, to Borrower’s Knowledge the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleadingmisleading (provided that, for the avoidance of doubt, the above qualification to Borrower’s Knowledge with respect to the certification shall not apply or in way affect the indemnification obligations set forth in clause (ii) below), (ii) indemnifying indemnify Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents directors and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, out-of-pocket costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become becomes subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing agree to reimburse each Indemnified Person for any out-of-pocket legal or other expenses reasonably incurred by such Indemnified Person, as they are incurredwithin ten (10) Business Days of written demand, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This The foregoing indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (i) above is provided. Notwithstanding anything to the contrary contained herein, the liability of Indemnifying Persons under this clause (b) shall not extend to any Liabilities (x) pertaining to any misstatements or omissions in any Disclosure Document other than Covered Disclosure Information requested by Lender in writing to be reviewed by Indemnifying Persons, or (y) unless Lender requested in writing that Indemnifying Persons review such Covered Disclosure Information contained in the Disclosure Document and such Covered Disclosure Information contained untrue statements or omissions constituting Liabilities hereunder and Indemnifying Persons did not identify such untrue statements or omissions.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities, provided, however, that the liability of Indemnifying Persons under this clause (c) shall not extend to any Liabilities (x) pertaining to any misstatements or omissions in any Exchange Act Filing other than Covered Disclosure Information requested by Lender in writing to be reviewed by Indemnifying Persons or (y) unless Lender requested in writing that Indemnifying Persons review such Covered Disclosure Information contained in the Exchange Act Filing and such Covered Disclosure Information contained untrue statements or omissions constituting Liabilities hereunder and Indemnifying Persons did not identify such untrue statements or omissions.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or -157- other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement
Securitization Indemnification. (a) Borrower understands Borrowers understand that certain of the Provided Information information provided to Lender by Borrowers and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(ba) Borrower agrees to provide, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the such Disclosure DocumentsDocuments specified and provided by Lender and that each such Disclosure Document, includingas it relates to Borrower, without limitationBorrower Affiliates, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and Property, Manager (B) such sections and such other information in the Disclosure Documents (to Borrowers’ knowledge, to the extent such information relates to or includes any Provided Information or any information regarding Manager is not an Affiliate of Borrowers), Guarantor and all other aspects of the PropertiesLoan, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 11.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇ Fargo that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇ Group”)) and ▇▇▇▇▇ Fargo, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls ▇▇▇▇▇ Fargo or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Informationsuch sections, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇ Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the ▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information in therein reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrowers, operating statements and rent rolls with respect to the Properties)Properties (collectively, and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accuratethe “Provided Information”). This The indemnification provided for in clauses (B) and (C) above shall be effective whether or not the indemnification agreement described above is provided; provided, however, such indemnity agreement shall be limited to the Provided Information and shall only be effective to the extent that Lender accurately states the Provided Information in the applicable Disclosure Document. The aforesaid indemnity will be in addition to any liability which Borrower Borrowers may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(cb) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify shall (i) indemnify Lender, the Indemnified Persons ▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities; provided, however, such indemnity shall be limited to the Provided Information and shall only be effective to the extent that Lender accurately states the Provided Information in the applicable Disclosure Document.
(dc) Promptly after receipt by an Indemnified Person indemnified party under this Section 11.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 11.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 11.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 11.2(b) or (c) hereof is for any reason held to be unenforceable as to an indemnified party in respect of any losses,
(i) ▇▇▇▇▇ Fargo’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrowers hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
(e) Without Borrowers shall jointly and severally indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender or its officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the prior consent Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Losses arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of Borrowers to the Rating Agencies (the “Covered Rated Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in Covered Rating Agency Information, in light of the Indemnified Person in question (circumstances under which consent shall they were made, not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld)misleading.
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons both Borrowers and Borrower Lender under this Section 9.2 11.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a "Disclosure Document") and may also be included in filings (an "Exchange Act Filing") with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.respects. 118
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus or term sheets, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “"Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “" "The Operating CompanyManager,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleadingmisleading in any material respect, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder JPMorgan Chase Bank ("JPMorgan Chase") that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization"Registration Statement"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"JPMorgan Chase Group"), and JPMorgan Chase, each of its directors and each Person who controls JPMorgan Chase within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "Underwriter Group") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “"Liabilities”)") to which any such Indemnified Person Lender, the JPMorgan Chase Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading in any material respect and (iiiC) agreeing to reimburse each Indemnified Person Lender, the JPMorgan Chase Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the JPMorgan Chase Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (provided and shall be applicable based on information previously provided by Borrower or its Affiliates if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, does not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under provide the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personcertificate.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined such Disclosure Documents specified by Lender and that each such Disclosure Document, as it relates to Borrower, Borrower Affiliates, the Disclosure Property, Manager, Operating Partnership, Guarantor and all other aspects of the Loan Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderSUBJECT TO THE TERMS OF ARTICLE 13 HEREOF, each NoteholderINDEMNIFYING LENDER (AND FOR PURPOSES OF THIS SECTION 11.2, JPM (whether or not it is the LenderLENDER HEREUNDER SHALL INCLUDE ITS OFFICERS AND DIRECTORS), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the SecuritizationTHE AFFILIATE OF ▇▇▇▇▇ FARGO BANK, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act NATIONAL ASSOCIATION (collectively, the “Indemnified Persons▇▇▇▇▇”) THAT HAS FILED THE REGISTRATION STATEMENT RELATING TO THE SECURITIZATION (THE “REGISTRATION STATEMENT”), for any lossesEACH OF ITS DIRECTORS, claimsEACH OF ITS OFFICERS WHO HAVE SIGNED THE REGISTRATION STATEMENT AND EACH PERSON THAT CONTROLS THE AFFILIATE WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT OR SECTION 20 OF THE EXCHANGE ACT (COLLECTIVELY, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the THE “Liabilities▇▇▇▇▇ GROUP”), AND ▇▇▇▇▇, AND ANY OTHER PLACEMENT AGENT OR UNDERWRITER WITH RESPECT TO THE SECURITIZATION, EACH OF THEIR RESPECTIVE DIRECTORS AND EACH PERSON WHO CONTROLS ▇▇▇▇▇ OR ANY OTHER PLACEMENT AGENT OR UNDERWRITER WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT AND SECTION 20 OF THE EXCHANGE ACT (COLLECTIVELY, THE “UNDERWRITER GROUP”) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationFOR ANY LOSSES, in light of the circumstances under which they were madeCLAIMS, not misleading DAMAGES OR LIABILITIES (COLLECTIVELY, THE “LIABILITIES”) TO WHICH LENDER, THE ▇▇▇▇▇ GROUP OR THE UNDERWRITER GROUP MAY BECOME SUBJECT INSOFAR AS THE LIABILITIES ARISE OUT OF OR ARE BASED UPON ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF ANY MATERIAL FACT CONTAINED IN SUCH SECTIONS OR ARISE OUT OF OR ARE BASED UPON THE OMISSION OR ALLEGED OMISSION TO STATE THEREIN A MATERIAL FACT REQUIRED TO BE STATED IN SUCH SECTIONS OR NECESSARY IN ORDER TO MAKE THE STATEMENTS IN SUCH SECTIONS, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇ Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the ▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five Property (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accuratethe “Provided Information”). This The indemnification provided for in clauses (B) and (C) above shall be effective whether or not the indemnification agreement described above is provided; provided, however, such indemnity agreement shall be limited to the Provided Information and shall only be effective to the extent that Lender accurately states the Provided Information in the applicable Disclosure Document. The aforesaid indemnity will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act IN CONNECTION WITH EXCHANGE ACT FILINGS, SUBJECT TO THE TERMS OF ARTICLE 13 HEREOF, BORROWER SHALL (if any)I) INDEMNIFY LENDER, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure InformationTHE ▇▇▇▇▇ GROUP AND THE UNDERWRITER GROUP FOR LIABILITIES TO WHICH LENDER, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationTHE ▇▇▇▇▇ GROUP OR THE UNDERWRITER GROUP MAY BECOME SUBJECT INSOFAR AS THE LIABILITIES ARISE OUT OF OR ARE BASED UPON THE OMISSION OR ALLEGED OMISSION TO STATE IN THE PROVIDED INFORMATION A MATERIAL FACT REQUIRED TO BE STATED IN THE PROVIDED INFORMATION IN ORDER TO MAKE THE STATEMENTS IN THE PROVIDED INFORMATION, in light of the circumstances under which they were madeIN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, not misleading NOT MISLEADING and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities; provided, however, that Borrower's liability under clauses (i) and (ii) above shall be effective only to the extent that Lender accurately sets forth the Provided Information in the applicable Disclosure Document. The obligations of Borrower pursuant to this Section 11.2(c) shall be in addition to but not in duplication of Section 11.2(b) above.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 11.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 11.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 11.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person indemnified party shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person indemnified party is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s 's fees and disbursements are solely related to the defense of a claim for which Borrower the indemnifying party is required hereunder to indemnify such Indemnified Personindemnified party. Borrower The indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 11.2(b) or (which consent shall not c) hereof is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 11.2(b) or (whether or not any Indemnified Person is an actual or potential c) hereof, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) ▇▇▇▇▇' and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwiseper capita allocation.
(f) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationSUBJECT TO THE TERMS OF ARTICLE 13 HEREOF, BORROWER SHALL JOINTLY AND SEVERALLY INDEMNIFY LENDER AND ITS OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND AFFILIATES AGAINST ANY LOSSES TO WHICH LENDER OR ITS OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND AFFILIATES, MAY BECOME SUBJECT IN CONNECTION WITH ANY INDEMNIFICATION TO THE RATING AGENCIES IN CONNECTION WITH ISSUING, MONITORING OR MAINTAINING THE SECURITIES INSOFAR AS THE LOSSES ARISE OUT OF OR ARE BASED UPON ANY UNTRUE STATEMENT OF ANY MATERIAL FACT IN ANY INFORMATION PROVIDED BY OR ON BEHALF OF BORROWER TO THE RATING AGENCIES (THE “COVERED RATING AGENCY INFORMATION”) OR ARISE OUT OF OR ARE BASED UPON THE OMISSION TO STATE A MATERIAL FACT IN THE COVERED RATING AGENCY INFORMATION REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS IN COVERED RATING AGENCY INFORMATION, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 11.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Cole Credit Property Trust Iv, Inc.)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideUpon Lender’s reasonable request, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) Borrower has carefully certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the Disclosure Documents, including, without limitationLoan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, Borrowerthe IP, Mortgage Borrowerthe First Mezzanine Collateral, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationManagers, the “Covered Disclosure Information”) do Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether Lender or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the Covered Disclosure Information Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements in the Covered Disclosure Informationtherein, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Borrowers will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the any Disclosure Documents Document(s) or in connection with the underwriting or the closing of the Loan (including or in the ordinary course of the Loan, including, without limitation limitation, financial statements of Borrower and any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the Covered Disclosure InformationLoan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in the Covered any such Disclosure Information Document a material fact in any Loan Party’s actual knowledge, required to be stated therein or necessary in such Disclosure Document in order to make the statements in the Covered such Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties.
(d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of any claim or the commencement of any action, the such Indemnified Person shallwill, if a claim in respect thereof is to be made against BorrowerBorrowers under this Section 9.3, notify Borrower Borrowers in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that the failure omission to so notify Borrower shall Borrowers will not relieve it any Borrower from any liability which it any Borrower may have under the indemnification provisions of this Section 9.2 to any Indemnified Person hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes material prejudice to any liability which it may have to an Indemnified Person otherwise than under Borrower. In the provisions of this Section 9.2. If event that any such claim or action shall be is brought against an any Indemnified Person, and it shall notify Borrower notifies Borrowers of the commencement thereof, Borrower shall Borrowers will be entitled to participate therein and, to the extent that it wishesthey may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Person. After notice from any Borrower Borrowers to an such Indemnified Person of its election to assume the defense of under this Section 9.3, such claim or action, Borrower shall not be liable to the Indemnified Person shall pay for any legal or other expenses subsequently incurred by the such Indemnified Person in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, Indemnified Person and one or more Indemnified Persons on any Borrower and the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or in addition additional to those available to BorrowerBorrowers, the Indemnified Person or Persons Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or PersonsPerson(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Lender, (which consent shall not be unreasonably withheld), no Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Borrowers shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower has Borrowers have complied with its their obligations to defend and indemnify hereunder, Borrower Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Borrowers (which consent shall not be unreasonably withheld).
(f) Borrower agrees Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.3), then BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerBorrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section 9.29.3, (A) no party Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Borrowers further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.3.
(h) The Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of the Indemnified Persons Borrowers and Borrower Lender under this Section 9.2 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating Company) Loan (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM Nomura (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Nomura that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Nomura that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-co underwriters, co-co placement agents or co-co initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Nomura (which consent shall not be unreasonably withheld, conditioned or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Nomura reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM BSCMI (whether or not it is the Lender), any Affiliate of JPM or a Noteholder BSCMI that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder BSCMI that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, 143 in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of the Indemnifying Persons whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that 144 there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question BSCMI (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person BSCMI reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the Disclosure DocumentsDocuments as such Disclosure Documents relate to Borrower, includingIndemnitor, Guarantor or the Property, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (Bii) the factual statements and representations contained in such sections and such other factual information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage BorrowerManager and/or the Loan), the Collateralin each case, the Senior Mezzanine Collateral and/or Operating Company) as specifically identified by Lender (collectively with the Provided Information, the “Covered Disclosure Information”) do are not contain any untrue statement of a material fact false or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each NoteholderLender, JPM its designee (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-co underwriters, co-co placement agents or co-co initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (includingexpenses, including without limitation, limitation legal fees and expenses for enforcement of these obligations expenses, to which any such Indemnified Person becomes subject pursuant to a final judgment (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement false or alleged untrue misleading statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided.. (collectively, the “Liabilities”)
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement false or alleged untrue misleading statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, Persons in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Inland American Real Estate Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or and provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that any portion of the Disclosure Document relating to Borrower, Guarantor, RMR LLC or Specified Manager or any Property is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information relating to Borrower, Guarantor, RMR LLC or Specified Manager and any Property necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) the Borrower has carefully examined the Disclosure Documents, including, without limitation, Documents the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and such other sections as reasonably requested by Lender (Bin each case, to the extent such information relates to or includes any Provided Information or any information regarding any Property, Borrower, Manager and/or Guarantor) and (ii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Propertiesany Property, Borrower, Mortgage BorrowerManager, the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyGuarantor ) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder M▇▇▇▇▇ S▇▇▇▇▇▇ that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsM▇▇▇▇▇ S▇▇▇▇▇▇ Group”), and M▇▇▇▇▇ S▇▇▇▇▇▇, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls M▇▇▇▇▇ S▇▇▇▇▇▇ or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses liabilities (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the M▇▇▇▇▇ S▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the Covered Disclosure Information or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the M▇▇▇▇▇ S▇▇▇▇▇▇ Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the M▇▇▇▇▇ S▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with Provided Information. The indemnification provided in clauses (B) and (C) above shall be effective whether or not the preparation of indemnification agreement described above is provided to Borrower or Guarantor; provided, however, such indemnity shall be limited to the Provided Information and shall only be effective to the extent that Lender accurately states the Provided Information in the applicable Disclosure Document. Notwithstanding the foregoing, Borrower shall have no liability under this Section 9.2(b) unless Lender provides Borrower with all Disclosure Documents and provides Borrower with a reasonable opportunity to review the same, and Borrower shall have no liability for any misstatement or omission to the extent Lender fails to revise the Disclosure Documents or in connection accordance with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising comments from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Borrower. This The aforesaid indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify shall (i) indemnify Lender, the Indemnified Persons M▇▇▇▇▇ S▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the M▇▇▇▇▇ S▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, Information or upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Disclosure Document related to Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the M▇▇▇▇▇ S▇▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the M▇▇▇▇▇ S▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 9.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 9.2(b) or (which consent shall not c) hereof is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential c) hereof, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees (by underwriting discount or otherwise) actually received by respective parties are entitled, the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 following factors shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.be considered:
(i) Notwithstanding anything M▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the contrary contained herein, Borrower shall have no obligation to act as depositor matter with respect to which the Loan claim was asserted; (ii) the opportunity to correct and prevent any statement or an issuer omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or registrant per capita allocation.
(f) Borrower shall indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender or its officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with respect any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities issued insofar as the Losses arise out of or are based upon any untrue statement of any material fact in any Securitizationinformation provided by or on behalf of Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading. Information provided to the Rating Agencies by any member of the Underwriter Group and not provided to Borrower for review shall not be considered Covered Rating Agency Information.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will shall cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesProperty, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM KeyBank (whether or not it is the Lender), any Affiliate of JPM or a Noteholder KeyBank that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder KeyBank that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will shall be in addition to any liability which that Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which that it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which that it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified any Indemnifying Person.
(e) Without the prior consent of the Indemnified Person in question KeyBank (which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person KeyBank reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights, liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Eagle Hospitality Properties Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the any Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Approved Rating Agencies, and service providers relating to the any Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent such information is in Borrower’s possessionpossession or control.
(b) Borrower agrees to cause Parent to provide, in connection with the any Securitization, an indemnification agreement (a “Securitization Indemnification Agreement”) (i) certifying that (A) Borrower Parent has carefully examined the Covered Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Information and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not Information does not, as of the date of the related disclosure document or as of the date of pricing the Securitization, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the any Securitization or has acted as the sponsor or depositor in connection with the any Securitization, any Affiliate of JPM or a Noteholder Person that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitizationagent, any other co-underwriters, underwriters or co-placement agents or co-initial purchasers of Securities issued in the Securitizationagents, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Parent will be liable in any such case under clauses (ii) or based upon the Covered Disclosure Information (iii) above only to the extent that any such Liabilities arise out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with (1) the written information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Parent, operating statements and rent rolls with respect to the Properties), Properties and (2) those portions of the Disclosure Documents furnished to and approved by Parent in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided the certificate furnished pursuant to Borrower for comment at least five clause (5i) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)above. This indemnity agreement will be in addition to any liability which Borrower any Relevant Party may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of Borrower, whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Any Securitization Indemnification Agreement shall provide that, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against BorrowerParent, notify Borrower Parent in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower Parent shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 8.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower Parent shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.28.2. If Any Securitization Indemnification Agreement shall provide that, if any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower Parent thereof, Borrower Parent shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After Any Securitization Indemnification Agreement shall provide that, after notice from any Borrower Parent to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower Parent shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both BorrowerParent, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to BorrowerParent, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Any Securitization Indemnification Agreement shall provide that, the Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower Parent is required hereunder to indemnify such Indemnified Person. Borrower Any Securitization Indemnification Agreement shall provide that, Parent shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(ed) Without Any Securitization Indemnification Agreement shall provide that, without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower Parent shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Parent shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceedings and such settlement requires no statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of each Indemnified Person. As Any Securitization Indemnification Agreement shall provide that, as long as Borrower Parent has complied with its obligations to defend and indemnify hereunder, Borrower Parent shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Parent (which consent shall not be unreasonably withheldwithheld or delayed).
(fe) Borrower agrees Any Securitization Indemnification Agreement shall provide that, Parent will agree that if any indemnification or reimbursement sought pursuant to described in this Section 9.2 8.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of described in this Section 9.28.2), then BorrowerParent, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerParent, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerParent, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding Any Securitization Indemnification Agreement shall provide that, notwithstanding the provisions of described in this Section 9.28.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees Parent will agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph Section 8.2(e) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(gf) Borrower agrees Any Securitization Indemnification Agreement shall provide that, Parent will agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 8.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Any Securitization Indemnification Agreement shall provide that, Parent will further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.28.2.
(hg) The Any Securitization Indemnification Agreement shall provide that, the liabilities and obligations of the Indemnified Persons and Borrower under Parent described in this Section 9.2 8.2 shall survive the termination of such Securitization Indemnification, this Agreement and the satisfaction and discharge of the Debt.
(ih) Notwithstanding anything to the contrary contained herein, none of Borrower or any of its Affiliates shall have no any obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract