Indemnification by the Depositor. The Depositor agrees to indemnify the Trustee and any of its agents, officers, directors or employees for, and to hold them harmless against, any loss, liability or expense arising, directly or indirectly, out of, relating to, or in connection with the acceptance, administration or performance of their duties, or the duties of the Trustee, as well as the costs and expenses of defending themselves against any action, suit, or other proceeding involving any claim or liability arising, directly or indirectly, out of, relating to or in connection with, this Agreement, the Initial Trust Agreement or the exercise or performance of any of their powers or duties hereunder or thereunder, other than any loss, liability or expense arising out of (i) negligence, willful misconduct or bad faith on the part of the Trustee or any of its agents, officers, directors or employees, or (ii) any charges, fees or reimbursements that are expressly required by this Agreement to be paid by the Holders or for which the Holders are expressly required by this Agreement or have elected pursuant to the terms of this Agreement to provide security or indemnity to the Trustee. Failure of the Depositor to fulfill its obligations hereunder shall not relieve the Trustee from fulfilling its duties under this Agreement. Any Person that proposes to assert the right to be indemnified under this Section 5.12 (any such Person, an "Indemnified Party") shall, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against the Depositor under this Section 5.12, notify the Depositor of the commencement of such action, enclosing a copy of all papers served, but the omission so to notify the Depositor shall not relieve the Depositor from any liability that it may have to such Indemnified Party under the foregoing provisions of this Section 5.12 unless, and only to the extent that, such omission results in the forfeiture of rights or defenses by the Depositor. If any such action is brought against an Indemnified Party and it notifies the Depositor of its commencement, the Depositor shall be entitled to participate in and, to the extent that it elects by delivering written notice to the Indemnified Party promptly after receiving notice of the commencement of the action from the Indemnified Party, to assume the defense of the action, with counsel satisfactory to the Indemnified Party, and after notice from the Depositor to the Indemnified Party of its election to assume the defense, the Depositor shall not be liable to the Indemnified Party for any fees, disbursements or other charges of counsel except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnified Party in connection with the defense. The Indemnified Party shall have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel shall be at the expense of the Indemnified Party unless (1) the employment of counsel by the Indemnified Party has been authorized in writing by the Depositor, (2) the Indemnified Party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnified Parties that are different from or in addition to those available to the Depositor, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnified Party) between the Indemnified Party and the Depositor (in which case the Depositor shall not have the right to direct the defense of such action on behalf of the Indemnified Party), or (4) the Depositor has not in fact employed counsel to assume the defense of such action within 15 Business Days after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel shall be at the expense of the Depositor. It is understood that the Depositor shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all Persons entitled to indemnification hereunder. All such fees, disbursements and other charges shall be reimbursed by the Depositor promptly as they are incurred. The Depositor shall not be liable for any settlement of any action or claim effected without its written consent (which consent shall not be unreasonably withheld). The Depositor shall not, without the prior written consent of each Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 5.12 (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising or that may arise out of such claim, action or proceeding. Notwithstanding any other provision of this Section 5.12, if at any time an Indemnified Party shall have requested the Depositor to reimburse the Indemnified Party for fees and expenses of counsel, the Depositor agrees that it shall be liable for any settlement effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by the Depositor of the aforesaid request, (ii) the Depositor shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into, and (iii) the Depositor shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of such settlement.
Appears in 4 contracts
Samples: Trust Agreement (National Financial Securities Corp), Trust Agreement (Corporate Asset Backed Corp), Trust Agreement (Corporate Asset Backed Corp)
Indemnification by the Depositor. The Depositor agrees to indemnify the Trustee and any of its agents, officers, directors or employees for, and to hold them harmless against, any loss, liability or expense arising, directly or indirectly, out of, relating to, or in connection with the acceptance, administration or performance of their duties, or the duties of the Trustee, as well as the costs and expenses of defending themselves against any action, suit, or other proceeding involving any claim or liability arising, directly or indirectly, out of, relating to or in connection with, this Agreement, the Initial Trust Agreement or the exercise or performance of any of their powers or duties hereunder or thereunder, other than any loss, liability or expense arising out of (i) negligence, willful misconduct or bad faith on the part of the Trustee or any of its agents, officers, directors or employees, or (ii) any charges, fees or reimbursements that are expressly required by this Agreement to be paid by the Holders or for which the Holders are expressly required by this Agreement or have elected pursuant to the terms of this Agreement to provide security or indemnity to the Trustee. Failure of the Depositor to fulfill its obligations hereunder shall not relieve the Trustee from fulfilling its duties under this Agreement. Any Person that proposes to assert the right to be indemnified under this Section 5.12 (any such Person, an "Indemnified Party") shall, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against the Depositor under this Section 5.12, notify the Depositor of the commencement of such action, enclosing a copy of all papers served, but the omission so to notify the Depositor shall not relieve the Depositor from any liability that it may have to such Indemnified Party under the foregoing provisions of this Section 5.12 unless, and only to the extent that, such omission results in the forfeiture of rights or defenses by the Depositor. If any such action is brought against an Indemnified Party and it notifies the Depositor of its commencement, the Depositor shall be entitled to participate in and, to the extent that it elects by delivering written notice to the Indemnified Party promptly after receiving notice of the commencement of the action from the Indemnified Party, to assume the defense of the action, with counsel satisfactory to the Indemnified Party, and after notice from the Depositor to the Indemnified Party of its election to assume the defense, the Depositor shall not be liable to the Indemnified Party for any fees, disbursements or other charges of counsel except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnified Party in connection with the defense. The Indemnified Party shall have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel shall be at the expense of the Indemnified Party unless (1) the employment of counsel by the Indemnified Party has been authorized in writing by the Depositor, (2) the Indemnified Party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnified Parties that are different from or in addition to those available to the Depositor, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnified Party) between the Indemnified Party and the Depositor (in which case the Depositor shall not have the right to direct the defense of such action on behalf of the Indemnified Party), or (4) the Depositor has not in fact employed counsel to assume the defense of such action within 15 Business Days after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel shall be at the expense of the Depositor. It is understood that the Depositor shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all Persons entitled to indemnification hereunder. All such fees, disbursements and other charges shall be reimbursed by the Depositor promptly as they are incurred. The Depositor shall not be liable for any settlement of any action or claim effected without its written consent (which consent shall not be unreasonably withheld). The Depositor shall not, without the prior written consent of each Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 5.12 (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising or that may arise out of such claim, action or proceeding. Notwithstanding any other provision of this Section 5.12, if at any time an Indemnified Party shall have requested the Depositor to reimburse the Indemnified Party for fees and expenses of counsel, the Depositor agrees that it shall be liable for any settlement effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by the Depositor of the aforesaid request, (ii) the Depositor shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into, and (iii) the Depositor shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of such settlement.reasonable
Appears in 3 contracts
Samples: Trust Agreement (Corporate Asset Backed Corp), Trust Agreement (Corporate Asset Backed Corp), Trust Agreement (Corporate Asset Backed Corp)
Indemnification by the Depositor. The Without limiting any other rights which the Funding Agents, the Administrative Agent or the Purchasers may have hereunder or under applicable law, the Depositor hereby agrees to indemnify each Indemnified Party for all Indemnified Amounts awarded against or incurred by any of them in any action or proceeding between the Trustee Depositor and any of its agentsthe Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, officersthe other Transaction Documents, directors the ownership or employees formaintenance, and to hold them harmless against, any loss, liability or expense arising, either directly or indirectly, of the Notes or any of the other transactions contemplated hereby or thereby, in each case to the extent arising out of, relating of or as a result of the activities of the Depositor pursuant to, or in connection with the acceptancecontemplated by, administration this Agreement or performance of their duties, or the duties any of the Trusteeother Transaction Documents, as well as the costs and expenses of defending themselves against any action, suit, or other proceeding involving any claim or liability arising, directly or indirectly, out of, relating to or in connection with, this Agreement, the Initial Trust Agreement or the exercise or performance of any of their powers or duties hereunder or thereunder, other than any loss, liability or expense arising out of excluding (i) negligenceIndemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts result from bad faith, gross negligence or willful misconduct or bad faith on the part of the Trustee a Purchaser seeking indemnification or any material breach by a Purchaser of its agents, officers, directors obligations hereunder or employeesunder the Transaction Documents, or (ii) any charges, fees or reimbursements that are expressly required by this Agreement to be paid by the Holders or for which the Holders are expressly required by this Agreement or have elected pursuant Indemnified Amounts to the terms of this Agreement to provide security or indemnity to extent the Trustee. Failure of the Depositor to fulfill its obligations hereunder shall not relieve the Trustee from fulfilling its duties under this Agreement. Any Person that proposes to assert the right to be indemnified under this Section 5.12 (any such Person, an "Indemnified Party") shall, promptly after receipt of notice of commencement of any action against such party same include losses in respect of which a claim is to be made against the Depositor under this Section 5.12, notify the Depositor Loans that are uncollectible on account of the commencement insolvency, bankruptcy or lack of such action, enclosing a copy creditworthiness of all papers served, but the omission so to notify related Loan Obligor. Without limiting the Depositor shall not relieve generality of the Depositor from any liability that it may have to such Indemnified Party under the foregoing provisions of this Section 5.12 unless, and only to the extent that, such omission results in the forfeiture of rights or defenses by the Depositor. If any such action is brought against an Indemnified Party and it notifies the Depositor of its commencementforegoing, the Depositor shall be entitled to participate in and, to the extent that it elects by delivering written notice to the Indemnified Party promptly after receiving notice of the commencement of the action from the Indemnified Party, to assume the defense of the action, with counsel satisfactory to the Indemnified Party, and after notice from the Depositor to the Indemnified Party of its election to assume the defense, the Depositor shall not be liable to the indemnify each Indemnified Party for any fees, disbursements or other charges of counsel except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnified Party in connection with the defense. The Indemnified Party shall have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel shall be at the expense of the Indemnified Party unless (1) the employment of counsel by the Indemnified Party has been authorized in writing by the Depositor, (2) the Indemnified Party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnified Parties that are different from or in addition to those available to the Depositor, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnified Party) between the Indemnified Party and the Depositor (in which case the Depositor shall not have the right to direct the defense of such action on behalf of the Indemnified Party), or (4) the Depositor has not in fact employed counsel to assume the defense of such action within 15 Business Days after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel shall be at the expense of the Depositor. It is understood that the Depositor shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all Persons entitled to indemnification hereunder. All such fees, disbursements and other charges shall be reimbursed by the Depositor promptly as they are incurred. The Depositor shall not be liable for any settlement of any action or claim effected without its written consent (which consent shall not be unreasonably withheld). The Depositor shall not, without the prior written consent of each Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 5.12 (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability Amounts arising or that may arise out of such claim, action or proceeding. Notwithstanding any other provision of this Section 5.12, if at any time an Indemnified Party shall have requested the Depositor to reimburse the Indemnified Party for fees and expenses of counsel, the Depositor agrees that it shall be liable for any settlement effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by the Depositor of the aforesaid request, (ii) the Depositor shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into, and (iii) the Depositor shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of such settlement.resulting from:
Appears in 1 contract
Samples: Note Purchase Agreement (OneMain Financial Holdings, Inc.)
Indemnification by the Depositor. (a) The Depositor agrees to shall indemnify the Trustee and any hold harmless each Initial Purchaser, each of its agentsrespective directors, officersofficers and each Person, directors if any, that controls each Initial Purchaser within the meaning of either the 1933 Act or employees forthe Exchange Act, against any and all losses, claims, damages, penalties, fines, forfeitures or liabilities to hold them harmless againstwhich such party or any such director, officer or controlling Person may become subject, under the 1933 Act, the Exchange Act or otherwise, to the extent that such losses, claims, damages, penalties, fines, forfeitures or liabilities (or actions in respect thereof) arise out of or are based upon (i) any loss, liability untrue statement or expense arising, directly alleged untrue statement of any material fact contained in the Preliminary Memorandum together with any term sheet or indirectly, out of, relating to, or any other marketing material used in connection with the acceptance, administration offering of the Offered Certificates (the “Marketing Materials”) (in each case excluding any pricing information omitted therefrom and any information derived from such pricing information) or performance of their dutiesthe Final Memorandum, or the duties of the Trustee, as well as the costs and expenses of defending themselves against in any action, suit, amendment or other proceeding involving any claim or liability arising, directly or indirectly, out ofsupplement thereto, relating to or in connection with, this Agreement, the Initial Trust Agreement or the exercise or performance of any of their powers or duties hereunder or thereunder, other than any loss, liability or expense arising out of (i) negligence, willful misconduct or bad faith on the part offering of the Trustee or any of its agents, officers, directors or employees, Offered Certificates or (ii) the omission or alleged omission to state in the Preliminary Memorandum together with the Marketing Materials (in each case excluding any chargespricing information omitted therefrom and any information derived from such pricing information) or the Final Memorandum, fees or reimbursements that are expressly required by this Agreement to be paid by the Holders in any amendment or for which the Holders are expressly required by this Agreement or have elected pursuant supplement thereto, relating to the terms offering of this Agreement the Offered Certificates, a material fact necessary to provide security or indemnity make the statements therein, in light of the circumstances in which they were made, not misleading, to the Trustee. Failure of the Depositor to fulfill its obligations hereunder shall not relieve the Trustee from fulfilling its duties under this Agreement. Any Person that proposes to assert the right to be indemnified under this Section 5.12 (any such Person, an "Indemnified Party") shall, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against the Depositor under this Section 5.12, notify the Depositor of the commencement of such action, enclosing a copy of all papers served, but the omission so to notify the Depositor shall not relieve the Depositor from any liability that it may have to such Indemnified Party under the foregoing provisions of this Section 5.12 unlessextent, and only to the extent thatthat such untrue statement or alleged untrue statement or omission or alleged omission does not relate to the Initial Purchaser Information, such omission results in the forfeiture of rights or defenses by the Depositor. If any such action is brought against an Indemnified Party and it notifies the Depositor of its commencement, the Depositor shall be entitled to participate in andreimburse each Initial Purchaser and each such director, to the extent that it elects by delivering written notice to the Indemnified Party promptly after receiving notice of the commencement of the action from the Indemnified Party, to assume the defense of the action, with counsel satisfactory to the Indemnified Party, and after notice from the Depositor to the Indemnified Party of its election to assume the defense, the Depositor shall not be liable to the Indemnified Party officer or controlling Person for any fees, disbursements legal or other charges of counsel except as provided below and except for the reasonable costs of investigation subsequently expenses reasonably incurred by the Indemnified Party in connection with the defense. The Indemnified Party shall have the right to employ its own counsel in any such actionInitial Purchaser and each such director, but the fees, expenses and other charges of such counsel shall be at the expense of the Indemnified Party unless (1) the employment of counsel by the Indemnified Party has been authorized in writing by the Depositor, (2) the Indemnified Party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it officer or other Indemnified Parties that are different from or in addition to those available to the Depositor, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnified Party) between the Indemnified Party and the Depositor (in which case the Depositor shall not have the right to direct the defense of such action on behalf of the Indemnified Party), or (4) the Depositor has not in fact employed counsel to assume the defense of such action within 15 Business Days after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel shall be at the expense of the Depositor. It is understood that the Depositor shall notcontrolling Person, in connection with investigating or defending any proceeding such loss, claim, damage, liability, penalty, fine, forfeiture or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all Persons entitled to indemnification hereunderaction. All such fees, disbursements and other charges The Depositor’s liability under this Section 3.1 shall be reimbursed by in addition to any other liability that the Depositor promptly as they are incurred. The Depositor shall not be liable for any settlement of any action or claim effected without its written consent (which consent shall not be unreasonably withheld). The Depositor shall not, without the prior written consent of each Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 5.12 (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising or that may arise out of such claim, action or proceeding. Notwithstanding any other provision of this Section 5.12, if at any time an Indemnified Party shall have requested the Depositor to reimburse the Indemnified Party for fees and expenses of counsel, the Depositor agrees that it shall be liable for any settlement effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by the Depositor of the aforesaid request, (ii) the Depositor shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into, and (iii) the Depositor shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of such settlementotherwise have.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American General Finance Inc)
Indemnification by the Depositor. The Depositor agrees to indemnify the Trustee and any of its agents, officers, directors or employees for, and to hold them harmless against, any loss, liability or expense arising, directly or indirectly, out of, relating to, or in connection with the acceptance, administration or performance of their duties, or the duties of the Trustee, as well as the costs and expenses of defending themselves against any action, suit, or other proceeding involving any claim or liability arising, directly or indirectly, out of, relating to or in connection with, this Agreement, the Initial Trust Agreement or the exercise or performance of any of their powers or duties hereunder or thereunderhereunder, other than any loss, liability or expense arising out of (i) negligence, willful misconduct or bad faith on the part of the Trustee or any of its agents, officers, directors or employees, or (ii) any charges, fees or reimbursements that are expressly required by this Agreement to be paid by the Holders or for which the Holders are expressly required by this Agreement or have elected pursuant to the terms of this Agreement may elect to provide security or indemnity to the Trustee. Failure of the Depositor to fulfill its obligations hereunder shall not relieve the Trustee from fulfilling its duties under this Agreement. Any Person person that proposes to assert the right to be indemnified under this Section 5.12 (any such Personperson, an "Indemnified Party") shall, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against the Depositor under this Section 5.12, notify the Depositor of the commencement of such action, enclosing a copy of all papers served, but the omission so to notify the Depositor shall will not relieve the Depositor from any liability that it may have to such Indemnified Party under the foregoing provisions of this Section 5.12 unless, and only to the extent that, such omission results in the forfeiture of rights or defenses by the Depositor. If any such action is brought against an Indemnified Party and it notifies the Depositor of its commencement, the Depositor shall will be entitled to participate in and, to the extent that it elects by delivering written notice to the Indemnified Party promptly after receiving notice of the commencement of the action from the Indemnified Party, to assume the defense of the action, with counsel satisfactory to the Indemnified Party, and after notice from the Depositor to the Indemnified Party of its election to assume the defense, the Depositor shall will not be liable to the Indemnified Party for any fees, disbursements legal or other charges of counsel expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnified Party in connection with the defense. The Indemnified Party shall will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel shall will be at the expense of the Indemnified Party unless (1) the employment of counsel by the Indemnified Party has been authorized in writing by the Depositor, (2) the Indemnified Party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnified Parties that are different from or in addition to those available to the Depositor, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnified Party) between the Indemnified Party and the Depositor (in which case the Depositor shall will not have the right to direct the defense of such action on behalf of the Indemnified Party), or (4) the Depositor has not in fact employed counsel to assume the defense of such action within 15 Business Days a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel shall will be at the expense of the Depositor. It is understood that the Depositor shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all Persons persons entitled to indemnification hereunder. All such fees, disbursements and other charges shall will be reimbursed by the Depositor promptly as they are incurred. The Depositor shall will not be liable for any settlement of any action or claim effected without its written consent (which consent shall will not be unreasonably withheld). The Depositor shall not, without the prior written consent of each Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 5.12 (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising or that may arise out of such claim, action or proceeding. Notwithstanding any other provision of this Section 5.12, if at any time an Indemnified Party shall have requested the Depositor to reimburse the Indemnified Party for fees and expenses of counsel, the Depositor agrees that it shall be liable for any settlement effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by the Depositor of the aforesaid request, (ii) the Depositor shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into, and (iii) the Depositor shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of such settlement.
Appears in 1 contract
Samples: Series Trust Agreement (Corporate Asset Backed Corp)
Indemnification by the Depositor. The Depositor agrees to shall indemnify and hold harmless the Trustee and any Initial Purchaser, each of its agentsdirectors, officersofficers and each Person, directors if any, that controls the Initial Purchaser within the meaning of either the 1933 Act or employees forthe Exchange Act, against any and all losses, claims, damages, penalties, fines, forfeitures or liabilities to hold them harmless againstwhich such party or any such director, officer or controlling Person may become subject, under the 1933 Act, the Exchange Act or otherwise, to the extent that such losses, claims, damages, penalties, fines, forfeitures or liabilities (or actions in respect thereof) (i) arise out of or are based upon any loss, liability untrue statement or expense arising, directly or indirectly, out of, relating toalleged untrue statement of any material fact contained in the Memorandum, or in connection with the acceptance, administration any amendment or performance of their duties, or the duties of the Trustee, as well as the costs and expenses of defending themselves against any action, suit, or other proceeding involving any claim or liability arising, directly or indirectly, out ofsupplement thereto, relating to or in connection with, this Agreement, the Initial Trust Agreement or the exercise or performance of any of their powers or duties hereunder or thereunder, other than any loss, liability or expense arising out of (i) negligence, willful misconduct or bad faith on the part offering of the Trustee or any of its agents, officers, directors or employees, Offered Certificates or (ii) any chargesarise out of or are based upon the omission or alleged omission to state in the foregoing a material fact necessary to make the statements therein, fees or reimbursements that are expressly required by this Agreement to be paid by in light of the Holders or for circumstances in which the Holders are expressly required by this Agreement or have elected pursuant they were made, not misleading, to the terms of this Agreement to provide security or indemnity to the Trustee. Failure of the Depositor to fulfill its obligations hereunder shall not relieve the Trustee from fulfilling its duties under this Agreement. Any Person that proposes to assert the right to be indemnified under this Section 5.12 (any such Person, an "Indemnified Party") shall, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against the Depositor under this Section 5.12, notify the Depositor of the commencement of such action, enclosing a copy of all papers served, but the omission so to notify the Depositor shall not relieve the Depositor from any liability that it may have to such Indemnified Party under the foregoing provisions of this Section 5.12 unlessextent, and only to the extent thatthat such untrue statement or alleged untrue statement or omission or alleged omission does not relate to the Initial Purchaser Information, such omission results in the forfeiture of rights or defenses by the Depositor. If any such action is brought against an Indemnified Party and it notifies the Depositor of its commencement, the Depositor shall reimburse the Initial Purchaser and each such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Initial Purchaser and each such director, officer or controlling Person, in connection with investigating or defending any such loss, claim, damage, liability, penalty, fine, forfeiture or action. The Depositor’s liability under this Section 3.1 shall be entitled in addition to participate in andany other liability that the Depositor may otherwise have. The Initial Purchaser shall indemnify and hold harmless the Depositor, its directors and officers, and each Person, if any, that controls the Depositor within the meaning of either the 1933 Act or the Exchange Act, against any and all losses, claims, damages, penalties, fines, forfeitures or liabilities to which such party or any such director, officer or controlling Person may become subject, under the 1933 Act, the Exchange Act or otherwise, to the extent that it elects by delivering written notice such losses, claims, damages, penalties, fines, forfeitures or liabilities (or actions in respect thereof) (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Supplemental Memorandum, or in any amendment or supplement thereto, relating to the Indemnified Party promptly after receiving notice offering of the commencement Offered Certificates or (ii) arise out of or are based upon the omission or alleged omission to state in the foregoing a material fact required to be stated therein or necessary to make the statements therein, in light of the action from the Indemnified Partycircumstances in which they were made, not misleading, to assume the defense of the action, with counsel satisfactory extent that such untrue statement or alleged untrue statement or omission or alleged omission relates to the Indemnified PartyInitial Purchaser Information, and after notice from the Initial Purchaser shall reimburse the Depositor to the Indemnified Party of its election to assume the defenseand each such director, the Depositor shall not be liable to the Indemnified Party officer or controlling Person for any fees, disbursements legal or other charges of counsel except as provided below and except for the reasonable costs of investigation subsequently expenses reasonably incurred by the Indemnified Party Depositor and each such director, officer or controlling Person, in connection with investigating or defending any such loss, claim, damage, liability, penalty, fine, forfeiture or action. The Initial Purchaser’s liability under this Section 3.1 shall be in addition to any other liability that the Initial Purchaser may otherwise have. If the indemnification provided for in this Section 3.1 shall for any reason be unavailable to an indemnified party under this Section 3.1, then the party which would otherwise be obligated to indemnify with respect thereto, on the one hand, and the parties which would otherwise be entitled to be indemnified, on the other hand, shall contribute to the aggregate losses, liabilities, claims, damages, penalties, fines, forfeitures and expenses of the nature contemplated herein and incurred by the parties hereto in such proportions that are appropriate to reflect the relative benefit to the Depositor and the Initial Purchaser from the issuance and sale of the Certificates or, if such allocation is not permitted by a court of competent jurisdiction, then on a basis appropriate to also recognize the relative fault of the Depositor and the Initial Purchaser in connection with the defenseapplicable misstatements or omissions as well as any other relevant equitable considerations, which may include the Depositor’s and the Initial Purchaser’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances; provided, however, that the Initial Purchaser’s total contribution shall not exceed its net proceeds from the sale of the Offered Certificates. The Indemnified Party Notwithstanding the foregoing, no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any Person that was not guilty of such fraudulent misrepresentation. For purposes of this Section 3.1, each director of a party to this Agreement and each Person, if any, that controls a party to this Agreement within the meaning of Section 15 of the 1933 Act shall have the right same rights to employ its own counsel in any contribution as such actionparty. MorEquity, but Inc. agrees with the feesInitial Purchaser, expenses for the sole and other charges of such counsel shall be at the expense exclusive benefit of the Indemnified Party unless (1) Initial Purchaser and each person who controls the employment Initial Purchaser within the meaning of counsel by either the Indemnified Party has been authorized in writing by 1933 Act or the Depositor, (2) Exchange Act and not for the Indemnified Party has reasonably concluded (based on advice benefit of counsel) that there may be legal defenses available to it any assignee thereof or any other Indemnified Parties that are different from person or in addition to those available to persons dealing with the Depositor, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnified Party) between the Indemnified Party and the Depositor (in which case the Depositor shall not have the right to direct the defense of such action on behalf of the Indemnified Party), or (4) the Depositor has not in fact employed counsel to assume the defense of such action within 15 Business Days after receiving notice of the commencement of the actionInitial Purchaser, in each consideration of which cases and as an inducement to its agreement to enter into the reasonable feestransactions contemplated herein, disbursements to indemnify and other charges of counsel shall be at hold harmless the expense of the Depositor. It is understood that the Depositor shall not, in connection with Initial Purchaser against any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all Persons entitled to indemnification hereunder. All such fees, disbursements and other charges shall be reimbursed failure by the Depositor promptly as they are incurred. The Depositor shall not be liable for any settlement of any action or claim effected without to perform its written consent (which consent shall not be unreasonably withheld). The Depositor shall not, without the prior written consent of each Indemnified Party, settle or compromise or consent obligations to the entry of Initial Purchaser pursuant to Section 3.1(a) hereof; provided, however, that the Initial Purchaser shall exhaust any judgment in any pending or threatened claim, action or proceeding relating and all remedies against the Depositor prior to the matters contemplated by this Section 5.12 (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising or that may arise out of such claim, action or proceeding. Notwithstanding any other provision seeking enforcement of this Section 5.123.1(d) against MorEquity, if at any time an Indemnified Party shall have requested the Depositor to reimburse the Indemnified Party for fees and expenses of counsel, the Depositor agrees that it shall be liable for any settlement effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by the Depositor of the aforesaid request, (ii) the Depositor shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into, and (iii) the Depositor shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of such settlement.Inc.
Appears in 1 contract
Samples: Indemnification and Contribution Agreement (American General Finance Corp)
