Representations and Warranties of the Seller with Respect to the Mortgage Loans The Seller hereby makes the following representations and warranties to the Trustee on behalf of the Certificateholders as of the Closing Date with respect to the Mortgage Loans:
Representations and Warranties of the Seller with Respect to the Receivables The Seller makes the following representations and warranties as to the Receivables on which the Issuer is deemed to have relied in acquiring the Receivables. Such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing Date, but shall survive the sale, transfer and assignment of the Receivables to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
Indemnification by the Seller Subject to the limitations set forth in this Article VII, each of the Seller and the Owner, jointly and severally (the “Seller Indemnifying Parties”), agrees to indemnify and hold harmless the Buyer, including its shareholders, members, directors, managers, officers, employees, Affiliates, and agents (each, a “Buyer Indemnified Party” and, collectively, the “Buyer Indemnified Parties”), against all claims, losses, Liabilities, damages, deficiencies, diminutions in value, costs, interest, awards, judgments, penalties, and expenses, including reasonable out-of-pocket attorneys’ and consultants’ fees and expenses and including any such reasonable expenses incurred in connection with investigating, defending against, or settling any of the foregoing (each, a “Loss” and, collectively, the “Losses”) paid, suffered, incurred, sustained, or accrued by any Buyer Indemnified Party, directly or indirectly, as a result of, arising out of, or in connection with: (a) any inaccuracy in, or breach of, any of the representations or warranties of the Seller and the Owner contained in this Agreement, (b) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by the Seller and/or the Owner pursuant to this Agreement, (c) any Excluded Asset or any Excluded Liability, (d) fraud by the Seller and/or Owner, (e) misclassification of any Seller employees and/or independent contractors, (f) any Excluded Taxes of the Seller, and/or (g) any violation, investigation, or enforcement proceeding under the Laws and regulations administered by U.S. Customs and Border Protection, including Laws requiring accurate entry declarations and payment of duties for imported merchandise, pertaining to merchandise imported by or for the Seller, during the period ending on or before the Closing Date.
Cooperation With the Mortgage Loan Sellers With Respect to Rights Under the Loan Agreements It is expressly agreed and understood that, notwithstanding the assignment of the Loan Documents, it is expressly intended that the Mortgage Loan Sellers are entitled to the benefit of any securitization indemnification provisions that specifically run to the benefit of the lenders in the Loan Documents. Therefore, the Depositor, Master Servicer, Special Servicer and Trustee hereby agree to reasonably cooperate with any Mortgage Loan Seller, at the sole expense of such Mortgage Loan Seller, with respect to obtaining the benefits of the provisions of any section of a Loan Agreement or securitization cooperation agreement providing for indemnification of the lender and/or its loan seller affiliates with respect to the current securitization of the related Mortgage Loan, including, without limitation, reassignment to the related Mortgage Loan Seller of such sections, but no other portion, of the Loan Documents, to permit the related Mortgage Loan Seller to enforce such provisions for its benefit; provided, that none of the Depositor, Master Servicer, Special Servicer or Trustee shall be required to take any action that is inconsistent with the Servicing Standard, would violate applicable law, the terms and provisions of this Agreement or the Loan Documents, would adversely affect any Certificateholder, would cause either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, or would result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions. To the extent that the Trustee is required to execute any document facilitating an assignment under this Section 12.14, such document shall be in form and substance reasonably acceptable to the Trustee.
Indemnification by the Servicer (a) The Servicer hereby agrees to indemnify and hold harmless the Borrower, the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Servicer Indemnified Party”), from and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of activities of the Servicer pursuant to this Agreement or any other Transaction Document, including any judgment, award, settlement, Attorney Costs and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim (all of the foregoing being collectively referred to as, “Servicer Indemnified Amounts”); excluding (i) any portion of Servicer Indemnified Amounts to the extent a final non-appealable judgment of a court of competent jurisdiction holds that such portion of such Servicer Indemnified Amounts resulted from the bad faith, gross negligence or willful misconduct by the Servicer Indemnified Party seeking indemnification, (ii) Taxes other than Taxes that represent losses, claims or damages arising from any non-Tax claim and (iii) Servicer Indemnified Amounts to the extent the same includes losses in respect of Pool Receivables that are uncollectible solely on account of the insolvency, bankruptcy, lack of creditworthiness or other financial inability to pay of the related Obligor. Without limiting or being limited by the foregoing, the Servicer shall pay on demand, to each Servicer Indemnified Party any and all amounts necessary to indemnify such Servicer Indemnified Party from and against any and all Servicer Indemnified Amounts relating to or resulting from any of the following (but excluding Servicer Indemnified Amounts described in clauses (i), (ii) and (iii) above):
Action by the Certificateholders with Respect to Certain Matters The Owner Trustee shall not have the power, except upon the direction of the Certificateholders, to (a) remove the Administrator pursuant to Section 8 of the Administration Agreement, (b) appoint a successor Administrator pursuant to Section 8 of the Administration Agreement, (c) remove the Servicer pursuant to Section 8.01 of the Sale and Servicing Agreement or (d) except as expressly provided in the Basic Documents, sell the Receivables after the termination of the Indenture. The Owner Trustee shall take the actions referred to in the preceding sentence only upon written instructions signed by the authorized representative of 100% of the Certificateholders.
Indemnification by the Sellers Each of the Sellers, severally and jointly, shall indemnify, defend and hold harmless, without duplication, the Purchasers, each of the Purchasers’ Affiliates and each of their respective officers, employees, agents and representatives (collectively, the “Purchaser Indemnified Parties,” and together with the Seller Indemnified Parties, the “Indemnified Parties”), from and against all Losses that such Purchaser Indemnified Party may at any time suffer or incur, or become subject to, that, directly or indirectly, arise out of or relate to (a) any failure by the Sellers to perform their obligations under this Agreement in accordance with the terms hereof, or any other breach or violation by the Sellers of the terms hereof, (b) the exercise by the Sellers of any right, power or discretion in relation to a Serviced Appointment, including (i) with respect to any Retained Duties (except to the extent the Sellers were acting in accordance with the instructions of the Purchasers in performing the Retained Duties or were acting as backup advancing agent pursuant to clause (c) of the definition of “Retained Duty”; provided that Sellers shall indemnify the Purchaser Indemnified Parties from and against all Losses that such Purchaser Indemnified Party may at any time suffer or incur, or become subject to, that, directly or indirectly, arise out of or relate to any Losses arising out of or relate to the Sellers’ negligent failure to make a backup advance as required pursuant to such Retained Duty) or (ii) with respect to any Excluded Appointment, the matters for which Seller and its Affiliates are responsible pursuant to Section 3.9 and (c) any action taken or omitted to be taken by the applicable Purchaser pursuant to and in accordance with a written direction given by any Seller (other than pursuant to Section 3.4.6), including any Specified Action taken (or omitted to be taken) by the Purchasers at the direction of the Sellers pursuant to Section 3.9, in each case of this clause (c) except to the extent the applicable Purchaser was negligent in taking or omitting to take such action.
Prior Notice to the Certificateholders with Respect to Certain Matters With respect to the following matters, the Owner Trustee shall not take action unless at least thirty (30) days before the taking of such action (or such shorter period as shall be agreed to in writing by all Certificateholders), the Owner Trustee shall have notified the Certificateholders in writing of the proposed action and none of the Certificateholders shall have notified the Owner Trustee in writing prior to the 30th day (or such agreed upon shorter period) after such notice is given that such Certificateholders have withheld consent or provided alternative direction:
Additional Indemnification by the Servicer The Servicer shall indemnify the Master Servicer, the Depositor, the Trustee, the Securities Administrator, the Trust Fund and the NIMS Insurer and hold them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses (collectively, the “Liabilities”) that the indemnified party may sustain in any way related to the failure of the Servicer to perform its duties and service the Mortgage Loans in accordance with the terms of this Agreement (including but not limited to its obligation to provide the certification pursuant to Section 5.05(b) hereunder) or for any inaccurate or misleading information provided in the certification required pursuant to Section 5.05(b). The Servicer shall immediately notify the Master Servicer, the Depositor, the Trustee, the Securities Administrator or the NIMS Insurer if a claim is made by a third party with respect to this Agreement or the Mortgage Loans that may result in such Liabilities, and the Servicer shall assume (with the prior written consent of the indemnified party) the defense of any such claim and pay all expenses in connection therewith, including counsel fees, promptly pay, discharge and satisfy any judgment or decree which may be entered against it or any indemnified party in respect of such claim and follow any written instructions received from the such indemnified party in connection with such claim. The Servicer shall be reimbursed promptly from the Trust Fund for all amounts advanced by it pursuant to the preceding sentence except when the claim is in any way related to the Servicer’s indemnification pursuant to Section 6.02, or the failure of the Servicer to service and administer the Mortgage Loans in accordance with the terms of this Agreement. In the event a dispute arises between the Servicer and an indemnified party with respect to any of the rights and obligations of the parties pursuant to this Agreement, and such dispute is adjudicated in a court of law, by an arbitration panel or any other judicial process, then the losing party (if the Trustee, the Trust Fund) shall indemnify and reimburse the winning party for all attorney’s fees and other costs and expenses related to the adjudication of said dispute.
Indemnification by the Selling Holders Each selling Holder agrees (severally and not jointly) to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors and officers and each Person who controls the Company (within the meaning of the Securities Act or the Exchange Act) from and against any Losses resulting from (i) any untrue statement of a material fact in any Registration Statement under which such Registrable Securities were registered or sold under the Securities Act (including any final, preliminary or summary Prospectus contained therein or any amendment thereof or supplement thereto or any documents incorporated by reference therein) or (ii) any omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or preliminary Prospectus, in light of the circumstances under which they were made) not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission is contained in such selling Holder’s Selling Stockholder Information. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the proceeds from the sale of its Registrable Securities in the offering giving rise to such indemnification obligation, net of underwriting discounts and commissions but before expenses, less any amounts paid by such Holder pursuant to Section 3.9.4 and any amounts paid by such Holder as a result of liabilities incurred under the underwriting agreement, if any, related to such sale.
