Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense: (1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and (2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24. (b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence. (c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee. (d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 17 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C15)
Indemnification; Third Party Claims. (a) The Special Subject to Section 6.3, the Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent of hold harmless the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), Owner against any and all claims, losses, penalties, fines, forfeitures, legal fees and Losses that the Owner may sustain in any way related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special failure of such Servicer by to service the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred Mortgage Loans in connection compliance with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; provided, however, the Servicer shall not be liable hereunder (Ba) which constitutes a Servicing Advance that is otherwise reimbursable to the extent such Losses directly result from the Custodian's negligent action, negligent failure to act, bad faith, willful misconduct or breach under this the Custodial Agreement; (C, dated as of November 1, 2003, among the Owner, the Servicer and the Custodian,(b) incurred in connection with respect to any legal action or claim against inaction in accordance with the party seeking indemnification, direction or consent of the Owner or (c) resulting from any breach on the part of that Owner's failure to respond to a request by the Servicer for direction or consent in accordance with Section 3.1(c) hereof. The Servicer shall immediately notify the Owner if a claim is made by a third party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under respect to this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeLoans. The Special Servicer shall assume (with the written consent of the Owner) the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all reasonable expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it the Servicer or them the Owner in respect of such claim. The Master Servicer shall promptly make follow any written instructions received from the Collection Account (and, if Owner in connection with any such claim and the Owner shall promptly reimburse the Servicer for all amounts reasonably advanced by it pursuant to the extent that preceding sentence, except when the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the claim (a) is related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer’s obligations to indemnify the Owner pursuant hereto, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special results from the failure of the Servicer agrees to indemnify service the Trust, and each other party to Mortgage Loans in compliance with the terms of this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising (c) results from or as a result of the Servicer's willful misfeasancemisconduct, bad faith or negligence in performing its duties under this Agreement. The Owner shall indemnify and hold harmless the performance Servicer against any and all Losses that the Servicer may sustain as a result of duties hereunder (a) any act or by reason omission on the part of negligent disregard the Owner or (b) a breach of any of the Owner’s representations, warranties or covenants or obligations contained herein. With respect to any Mortgage Loan, in the event that the Owner records or causes to be recorded in the appropriate public recording office of the jurisdiction in which the related Mortgaged Property is located the related Assignment of Mortgage which designates the Owner as the holder of record of the Mortgage, the Owner shall comply with the provisions of Section 5.2(a) regarding the execution and duties hereunder delivery of release and reconveyance documents, and shall immediately complete, sign and return to the Servicer any additional documents that may be required of the holder of record of the Mortgage and may be reasonably requested by the Special Servicer in order to permit the Servicer to comply with the Servicer’s servicing obligations, and, in its capacity as the holder of record, shall take such other action as may be reasonably requested by the Servicer. The TrusteeIn addition, if, as a result of the recording of the related Assignment of Mortgage, the DepositorOwner, in its capacity as the Certificate Administratorholder of record, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party receives written notice of any action with respect to this Agreement the related Mortgage or the Specially Serviced Mortgage Loans entitling the Trust or the Trusteerelated Mortgaged Property, the Depositor, Owner shall send a copy of such notice to the Certificate Administrator, Servicer immediately in accordance with the Custodian, provisions of Section 9.8 of this Agreement. The Owner agrees that the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory have no liability to the Trustee, Owner for the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any Owner’s failure to so notify comply with the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under provisions set forth in this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligenceparagraph.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 16 contracts
Samples: Servicing Agreement (GSR Mortgage Loan Trust 2006-Oa1), Servicing Agreement (GSR Mortgage Loan Trust 2007-Ar2), Servicing Agreement (GSR Mortgage Loan Trust 2006-9f)
Indemnification; Third Party Claims. (a) The Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Master Servicer (the “Special Master Servicer Indemnified Parties”) shall be indemnified and held harmless out of the collections on, and other proceeds of of, the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (collectively, “Special Master Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trusteeexpenses, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (Ai) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (Bii) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (Ciii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (Div) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Master Servicer Losses described in the preceding paragraph (including in the case of such Special Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Special Master Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Master Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeMaster Servicer) and out of the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement. The Trustee, the Certificate Administrator or the Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Master Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Master Servicer pursuant to this Section 9.248.25.
(b) The Special Master Servicer agrees to indemnify the Trust, and each other party to this Agreement Agreement, the Trust, and any director, officer, member, manager, employee or employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such person Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder by (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Special ServicerMaster Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master Servicer Depositor, as applicable, shall immediately notify the Special Master Servicer if a claim is made by a third party any Person with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunderunder this Section 8.25(b), whereupon the Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master ServicerDepositor, as the case may beapplicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Master Servicer shall not affect any rights the Trustee, the Special Servicer, the Trust or the TrusteeAdvisor, the Depositor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Master Servicer’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee. Any expenses incurred or indemnification payments made by the Special Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Master Servicer was not culpable or such indemnifying party was found to that the Master Servicer did not have acted act with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Master Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, Agreement and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Master Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 13 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C15)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, Owner and hold them it harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Owner may sustain arising from or as a result in any way related to the failure of the willful misfeasance, bad faith Servicer to perform its duties and service the Mortgage Loans in strict compliance with the terms of this Agreement or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicerany Reconstitution Agreement entered into pursuant to Section 7.01. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer immediately shall immediately notify the Special Servicer Owner if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust any Reconstitution Agreement or the TrusteeMortgage Loans, the Depositorshall promptly notify Fannie Mae, the Certificate AdministratorFreddie Mac, the Custodian, the Trust Advisor or the Master Servicertrustee with respect to any claim mxxx xx x xhixx xxxxy with respect to any Reconstitution Agreement, as assume (with the case may be, to indemnification hereunder, whereupon prior written consent of the Special Servicer shall assume Owner) the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Owner in respect of such claim. Any failure to so notify the Special The Servicer shall not affect follow any rights written instructions received from the Trust Owner in connection with such claim. The Owner promptly shall reimburse the Servicer 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 Trustee, failure of the Depositor, Servicer to service and administer the Certificate Administrator, Mortgage Loans in strict compliance with the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under terms of this Agreement or otherwise, unless any Reconstitution Agreement. The Owner shall indemnify the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held hold it harmless against the Trust’s pro rata share of any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs, liabilities, fees and expenses incurred that the Servicer may sustain in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable way related to the related Non-Serviced Companion Loans), reasonably requiring failure of the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Owner to perform its duties under in compliance with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementterms of this Agreement or any Reconstitution Agreement entered into pursuant to Section 7.01.
Appears in 12 contracts
Samples: Master Servicing Agreement (Structured Asset Sec Mort Pass Thru Cert Ser 2002-22h), Master Servicing Agreement (Structured Asset Sec Mort Pass Thru Cert Ser 2002-22h), Master Servicing Agreement (Structured Asset Securities Corp Mort Pass Thru Ser 2004-5h)
Indemnification; Third Party Claims. (a) The Special Master Servicer and any Affiliate, director, officer, employee, member, manager employee or agent of the Special Master Servicer (the “Special "Master Servicer Indemnified Parties”") shall be indemnified and held harmless by the Trust out of the collections on, and other proceeds of of, the Mortgage Loans, any Serviced Companion Mortgage Loans and any B Notes (including REO Loans)Notes, as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special collectively, "Master Servicer Losses”") incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Mortgage Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by reason of the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any Master Servicer's willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or dutieshereunder. Except as provided in the following sentence, indemnification for Special Master Servicer Losses described in the preceding paragraph (including in the case of such Special Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Mortgage Loan or any B Note. In the case of any such Special Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 11 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Hq13), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Top21), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Top20)
Indemnification; Third Party Claims. The Servicer shall indemnify and hold harmless the Owner and its affiliates and their respective officers, directors, shareholders, employees, agents, successors and any assigns from, and shall reimburse them for, all Damages incurred by or asserted against any of such individuals or entities on or after the Effective Date which arise out of, or are in connection with or result from: (ai) The Special any false, inaccurate or untrue representation or warranty made by Servicer and contained in this Agreement; or (ii) the non-fulfillment or non-performance of any Affiliate, director, officer, employee, member, manager covenant or agent obligation of the Special Servicer contained in this Agreement; or (iii) any failure of the “Special Servicer Indemnified Parties”on or after the Effective Date to comply with Accepted Servicing Practices for which the Servicer is responsible under this Agreement, except to the extent that such failure occurs as a result of the non-compliance by the Owner with any of its obligations under this Agreement. Notwithstanding anything contained herein to the contrary, the Servicer’s obligations of indemnity pursuant to this Section 8.01 shall exclude Damages to the extent resulting from or arising out of (i) the failure of any Prior Servicer to service the loans in accordance with Accepted Servicing Practices or (ii) the Owner’s failure to deliver the information required by the Servicer to service the Mortgage Loans in accordance with the Accepted Servicing Practices. To the extent that the Servicer has actual knowledge of any failure described in (i) and (ii) above, the Servicer shall use all reasonable efforts to give to Owner timely notice with respect thereto; provided, however, that failure of the Servicer to give such notice shall not affect the Servicer’s exclusion from obligations of indemnity set forth in subsections (i) and (ii) of this Section 8.01. For purposes of indemnification, the representations and warranties of the Servicer contained in this Agreement shall be deemed to have been made without any limitation or qualification as to materiality or knowledge with respect to such representations and warranties, in each case that are set forth in any such representation or warranty herein, it being the intention of the parties that the Owner shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans from and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or Damages resulting from the Certificates or any exercise failure of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a such representation or warranty made to be true, correct and complete in any respect or the failure by the Servicer to duly and punctually perform any covenant, agreement or undertaking of the Servicer contained in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 10 contracts
Samples: Reconstituted Servicing Agreement (HarborView 2006-14), Servicing Agreement (Mortgage Loan Pass-Through Certificates Series 2003-1), Servicing Agreement (HarborView 2007-2)
Indemnification; Third Party Claims. (a) The Special Servicer agrees to indemnify the Owner, its successors and assigns, and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer Owner, and the NIMs Insurer (the “Special Servicer each an "Indemnified Parties”Person") shall be indemnified and held hold each such Indemnified Person harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans from and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person Indemnified Person may sustain arising from or as a result in any way related to the failure of the willful misfeasanceServicer to perform its duties and service the Mortgage Loans in strict compliance with the terms of this Agreement and for breach of any representation, bad faith warranty or negligence in covenant of the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special ServicerServicer contained herein. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a Owner and the NIMs Insurer in accordance with Section 11.04 herein of any claim is made by a third party against the Servicer, the Owner or both, with respect to this Agreement or Agreement, the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer and/or any alleged act by Owner. The Owner shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all costs and expenses in connection therewith, (including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and expenses) of defending the Servicer and itself against any such claim other than (i) any loss, liability or expense related costs, judgments and any other costs, liabilities, fees and expenses incurred to the Servicer's failure to perform Servicer's duties in connection strict compliance with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement; and (ii) any loss, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel liability or the incurring of expenses other than any losses expense incurred by reason of any Non-Serviced Mortgage Loan Special the Servicer’s 's willful misfeasance, bad faith or negligence in the performance of its duties under hereunder or by reason of reckless disregard of its obligations and duties hereunder. The Owner shall promptly pay, discharge and satisfy any judgment or decree that may be entered against it in respect of such claim. If in any event, the Servicer incurred any expenses or fees related Non-Serviced Mortgage Loan Pooling and Servicing Agreementto the above, the Owner shall reimburse the Servicer within thirty (30) Business Days upon receipt of an invoice from the Servicer of all amounts advanced by the Servicer pursuant to the preceding sentence.
Appears in 8 contracts
Samples: Pooling and Servicing Agreement (Homestar Mortgage Acceptance Corp Asset-Backed Pass-Through Certificates, Series 2004-4), Pooling and Servicing Agreement (Homestar Mortgage Accep Corp Asst Back Certs Ser 2004-2.), Pooling and Servicing Agreement (Homestar Mortgage Acceptance Corp Asset Backed Pass-Through Certificates, 2004-6)
Indemnification; Third Party Claims. (a) The Special Master Servicer and any Affiliate, director, officer, employee, member, manager employee or agent of the Special Master Servicer (the “Special "Master Servicer Indemnified Parties”") shall be indemnified and held harmless by the Trust out of the collections on, and other proceeds of of, the Mortgage Loans, any Serviced Companion Mortgage Loans and any B Notes (including REO Loans)Notes, as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special collectively, "Master Servicer Losses”") incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Mortgage Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by reason of the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any Master Servicer's willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or dutieshereunder. Except as provided in the following sentence, indemnification for Special Master Servicer Losses described in the preceding paragraph (including in the case of such Special Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Mortgage Loan or any B Note. In the case of any such Special Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Special Master Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Master Servicer Losses relate to any A/B Whole Mortgage Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Mortgage Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Serviced Pari Passu Mortgage Loan and the Serviced Companion Mortgage Loan, in the relative proportions provided for in the related Loan Pair Intercreditor Agreement and (z) if the aggregate collections and proceeds described in subclauses (x) and (y) of this clause (2) are not sufficient to so indemnify the Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeMaster Servicer) and out of the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement. The Trustee, the Paying Agent or the Master Servicer shall promptly make from the Collection Certificate Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Mortgage Loan or any B Note, as set forth described above, out of the related Serviced Companion Mortgage Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Master Servicer to the Master Servicer, the Trustee and the Certificate Administrator Paying Agent as required to be made to the Special Master Servicer pursuant to this Section 9.248.25.
(b) The Special Master Servicer agrees to indemnify the Trustee, the Fiscal Agent, the Special Servicer, the Trust, and each other party to this Agreement the Depositor, the Paying Agent, and any director, officer, memberemployee, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Trustee, the Fiscal Agent, the Special Servicer, the Depositor, the Paying Agent and the Trust may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer's duties hereunder or by reason of negligent disregard of the Master Servicer's obligations and duties hereunder by (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from being released from such obligations), and if in any such situation the Special ServicerMaster Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent or the Depositor, the Certificate Administratoras applicable, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Master Servicer if a claim is made by a third party any Person with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or Trustee, the TrusteeFiscal Agent, the Depositor, the Certificate AdministratorSpecial Servicer, the Custodian, Paying Agent or the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunderunder this Section 8.25(b), whereupon the Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent or the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may beapplicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Master Servicer shall not affect any rights the Trust or Trustee, the TrusteeFiscal Agent, the Special Servicer, the Depositor, the Certificate Administrator, the Custodian, Paying Agent or the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Master Servicer’s 's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Fiscal Agent, the Special Servicer, the Paying Agent and the Trustee. Any expenses incurred or indemnification payments made by the Special Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Master Servicer was not culpable or such indemnifying party was found to that the Master Servicer did not have acted act with willful misfeasance, bad faith or negligence.
(c) The Primary Servicer and any director, officer, employee or agent thereof shall be indemnified by the Trust and held harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to this Agreement, the Primary Servicing Agreement (but only if, and to the extent that, the Master Servicer would have been entitled to indemnification therefor under this Agreement if it were directly servicing the Mortgage Loan), any Mortgage Loans, any REO Property or the Certificates or any exercise of any right under this Agreement or the Primary Servicing Agreement (limited as set forth above) reasonably requiring the use of counsel or the incurring of expenses other than any loss, liability or expense incurred by reason of the Primary Servicer's willful misfeasance, bad faith or negligence in the performance of duties thereunder. The Primary Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Primary Servicer) and out of the Trust pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided in Sections 9.24(a) and 9.24(b) herein shall survive the termination of this Agreement and the termination or resignation of the Special ServicerPrimary Servicing Agreement. The Trustee, the Certificate Administrator, the Custodian, the Trust Advisor, Paying Agent or the Master Servicer or shall promptly make from the TrusteeCertificate Account any payments certified by the Primary Servicer to the Trustee and the Paying Agent as required to be made to the Primary Servicer pursuant to this Section 8.25.
(d) Any Non-Serviced Mortgage Loan Special Master Servicer and any Affiliate, director, officer, employee, member, manager employee or agent of such Non-Serviced Mortgage Loan Special Master Servicer shall be indemnified by the Trust and held harmless against the Trust’s 's pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Mortgage Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Master Servicer’s 's willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
(e) The Primary Servicer agrees to indemnify the Trustee, the Fiscal Agent, the Special Servicer, the Trust, the Depositor, the Paying Agent, and any director, officer, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that the Trustee, the Fiscal Agent, the Special Servicer, the Depositor, the Paying Agent and the Trust may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Primary Servicer's duties under this Agreement, the Primary Servicing Agreement or by reason of negligent disregard of the Primary Servicer's obligations and duties thereunder (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from being released from such obligations), and if in any such situation the Primary Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor primary servicer. The Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent or the Depositor, as applicable, shall immediately notify the Primary Servicer if a claim is made by any Person with respect to this Agreement, the Primary Servicing Agreement or the Mortgage Loans entitling the Trustee, the Fiscal Agent, the Depositor, the Special Servicer, the Paying Agent or the Trust to indemnification under this Section 8.25(d), whereupon the Primary Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent or the Depositor, as applicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Primary Servicer shall not affect any rights the Trustee, the Fiscal Agent, the Special Servicer, the Depositor, the Paying Agent or the Trust may have to indemnification under this Agreement, the Primary Servicing Agreement or otherwise, unless the Primary Servicer's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the Primary Servicing Agreement and the resignation or termination of the Master Servicer, the Fiscal Agent, the Special Servicer, the Paying Agent and the Trustee. Any expenses incurred or indemnification payments made by the Primary Servicer shall be reimbursed by the party so paid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Primary Servicer was not culpable or that the Primary Servicer did not act with willful misfeasance, bad faith or negligence.
Appears in 7 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 TOP 17), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 TOP 17), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Top16)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C7), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C8), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C9)
Indemnification; Third Party Claims. (a) The Special Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent of hold harmless the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), Owner against any and all third party claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred that the Owner may sustain in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing way related to the Special failure of the Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred perform in connection compliance with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; provided, however, the Servicer shall not be liable hereunder with respect to (Bi) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against inaction in accordance with the party seeking indemnificationwritten direction or consent of the Owner, (ii) any action or inaction resulting from the Owner's failure to cause any breach on Collateral File (or portion thereof) to be released to the part of that party of a representation Servicer pursuant to Sections 2.18 or warranty made in this Agreement; 4.2(c), or (Diii) incurred in connection with any legal action or claim against the party seeking indemnification, inaction resulting from any willful misfeasance, bad faith or negligence on the part of that Owner's failure to comply with Section 5.1(b). The Servicer shall notify the Owner if a claim is made by a third party in the performance of its obligations or duties under with respect to this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In that the case of any Servicer determines in its good faith judgment will materially affect the Owner's interest in such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeLoans. The Special Servicer shall assume (with the written consent of the Owner) the defense of any such claim (with counsel reasonably satisfactory and, subject to the Trustee) and the Trust shall paylast sentence of this paragraph, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all reasonable expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it the Servicer or them the Owner in respect of such claim. The Master Servicer shall promptly make follow any written instructions received from the Collection Owner in connection with any such claim. The Servicer shall have the right to reimburse itself from the Account for all expenses, advances and liabilities incurred by the Servicer in respect of any such claim (andwhether or not the Servicer has assumed the defense thereof), if and except when the claim (i) is related to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees 's obligations to indemnify the TrustOwner pursuant hereto, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising (ii) results from or as a result the failure of the Servicer to service the Mortgage Loans in compliance with the terms of this Agreement, or (iii) results from the Servicer's willful misfeasancemisconduct, bad faith or negligence in performing its duties under this Agreement.
(b) With respect to any Mortgage Loan, in the performance event that the Owner records or causes to be recorded in the appropriate public recording office of duties hereunder or by reason the jurisdiction in which the related Mortgaged Property is located the related Assignment of negligent disregard Mortgage which designates the Owner as the holder of obligations record of the Mortgage and duties hereunder by the Special Servicer. The TrusteeOwner, in its capacity as the Depositorholder of record, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party receives written notice of any action with respect to this Agreement the related Mortgage or the Specially Serviced Mortgage Loans entitling the Trust or the Trusteerelated Mortgaged Property, the Depositor, Owner shall promptly send a copy of such notice to the Certificate Administrator, Servicer in accordance with Section 9.8. The Owner agrees that the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory have no liability to the Trustee, Owner for the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any Owner's failure to so notify comply with the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under provisions set forth in this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligenceparagraph.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 6 contracts
Samples: Servicing Agreement (Banc of America Funding 2006-5 Trust), Servicing Agreement (Banc of America Funding 2006-6 Trust), Servicing Agreement (Banc of America Funding Corp)
Indemnification; Third Party Claims. (a) The Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Master Servicer (the “Special Master Servicer Indemnified Parties”) shall be indemnified and held harmless out of the collections on, and other proceeds of of, the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (collectively, “Special Master Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trusteeexpenses, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (Ai) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (Bii) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (Ciii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (Div) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Master Servicer Losses described in the preceding paragraph (including in the case of such Special Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Special Master Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Master Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeMaster Servicer) and out of the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement. The Trustee, the Certificate Administrator or the Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Master Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Master Servicer pursuant to this Section 9.248.25.
(b) The Special Master Servicer agrees to indemnify the Trust, and each other party to this Agreement Agreement, the Trust, and any director, officer, memberemployee, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such person Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder by (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Special ServicerMaster Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master Servicer Depositor, as applicable, shall immediately notify the Special Master Servicer if a claim is made by a third party any Person with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunderunder this Section 8.25(b), whereupon the Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master ServicerDepositor, as the case may beapplicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Master Servicer shall not affect any rights the Trustee, the Special Servicer, the Trust or the TrusteeAdvisor, the Depositor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Master Servicer’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee. Any expenses incurred or indemnification payments made by the Special Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Master Servicer was not culpable or such indemnifying party was found to that the Master Servicer did not have acted act with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Master Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, Agreement and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Master Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C7), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C8), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C9)
Indemnification; Third Party Claims. (a) The Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Master Servicer (the “Special Master Servicer Indemnified Parties”) shall be indemnified and held harmless out of the collections on, and other proceeds of of, the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (collectively, “Special Master Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trusteeexpenses, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (Ai) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (Bii) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (Ciii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (Div) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Master Servicer Losses described in the preceding paragraph (including in the case of such Special Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Special Master Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Master Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeMaster Servicer) and out of the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement. The Trustee, the Certificate Administrator or the Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Master Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Master Servicer pursuant to this Section 9.248.25.
(b) The Special Master Servicer agrees to indemnify the Trust, and each other party to this Agreement Agreement, the Trust, and any director, officer, member, manager, employee or employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such person Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder by (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Special ServicerMaster Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master Servicer Depositor, as applicable, shall immediately notify the Special Master Servicer if a claim is made by a third party any Person with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunderunder this Section 8.25(b), whereupon the Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master ServicerDepositor, as the case may beapplicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Master Servicer shall not affect any rights the Trustee, the Special Servicer, the Trust or the TrusteeAdvisor, the Depositor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Master Servicer’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee. Any expenses incurred or indemnification payments made by the Special Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Master Servicer was not culpable or such indemnifying party was found to that the Master Servicer did not have acted act with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C16), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C15)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C16), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C16)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager employee or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers employees and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement the Trustee, the Depositor, the Master Servicer, the Trust Advisor, the Certificate Administrator and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager employee or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4)
Indemnification; Third Party Claims. (a) The Special Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent of hold harmless the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), Owner against any and all third party claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred that the Owner may sustain in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing way related to the Special failure of the Servicer by to service the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred Mortgage Loans in connection compliance with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; provided, however, the Servicer shall not be liable hereunder with respect to (Bi) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, inaction resulting from the written direction or consent of the Owner, (ii) any breach on action or inaction resulting from the part of that party of a representation Owner's failure to cause any Collateral File (or warranty made in this Agreement; portion thereof) to be released to the Servicer pursuant to Sections 2.18 or 4.2(c), or (Diii) incurred in connection with any legal action or claim against the party seeking indemnification, inaction resulting from any willful misfeasance, bad faith the Owner's failure to comply with Section 5.1(b) or negligence on Section 5.6. The Servicer shall notify the part of that Owner if a claim is made by a third party in the performance of its obligations or duties under with respect to this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In that the case of any Servicer determines in its good faith judgment will materially affect the Owner's interest in such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeLoans. The Special Servicer shall assume (with the written consent of the Owner) the defense of any such claim (with counsel reasonably satisfactory and, subject to the Trustee) and the Trust shall paylast sentence of this paragraph, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all reasonable expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it the Servicer or them the Owner in respect of such claim. The Master Servicer shall promptly make follow any written instructions received from the Collection Owner in connection with any such claim. The Servicer shall have the right to reimburse itself from the Account for all expenses, advances and liabilities incurred by the Servicer in respect of any such claim (andwhether or not the Servicer has assumed the defense thereof), if and except when the claim (x) is related to the extent that Servicer's obligations to indemnify the amount due shall be paid Owner pursuant hereto, (y) results from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out the failure of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to service the Master Mortgage Loans in compliance with the terms of this Agreement, or (z) results from the Servicer's willful misconduct, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to bad faith or negligence in performing its duties under this Section 9.24Agreement.
(b) The Special Servicer agrees With respect to indemnify any Mortgage Loan, if the TrustOwner records or causes to be recorded the related Assignment of Mortgage designating the Owner as the holder of record of the Mortgage in the appropriate public recording office of the jurisdiction in which the related Mortgaged Property is located, and each other party the Owner, in its capacity as the holder of record, receives written notice of any action with respect to this Agreement and any directorthe related Mortgage or Mortgaged Property, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all the Owner shall promptly send a copy of such notice to the Servicer in accordance with Section 9.8. The Servicer shall have no liability to the Owner for claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and or any other costscosts or expenses, liabilities, fees and expenses that such person may sustain arising result from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any Owner's failure to so notify comply with the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under provisions set forth in this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligenceparagraph.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 5 contracts
Samples: Servicing Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2005-20), Servicing Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2005-23), Servicing Agreement (Structured Adjustable Rate Mortgage Loan Trust)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager employee or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless by the Trust, out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any the A/B Notes Mortgage Loan (including REO Loans), if and to the extent that the matter relates to such A/B Mortgage Loan) against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative Trustee or the Master Servicer pursuant to any provision of this Agreement, Agreement in each case and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers employees and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeSpecial Servicer) and the Trust shall pay, from amounts on deposit in the Collection Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out termination of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee the termination or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result resignation of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer Trust shall be reimbursed by the party so paid or at the direction of which a payment was madeSpecial Servicer, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive . Notwithstanding the termination of this Agreement and the termination foregoing, if such loss, liability or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-expense relates specifically to a particular Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Pari Passu Mortgage Loan (or another Mortgage Loan included in the Trust) or a particular Serviced Companion Mortgage Loan, then such indemnification shall be paid out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan, other Mortgage Loan or Serviced Companion Mortgage Loan, as applicable and not out of proceeds of any related B Note. If such loss, liability or expense relates to an A/B Mortgage Loan but excluding any such losses allocable does not relate to the related Non-Serviced Companion Loans)A Note and does not relate primarily to the administration of the Trust or any REMIC formed hereunder or to any determination respecting the amount, reasonably requiring payment or avoidance of any tax under the use REMIC provisions of counsel the Code or the incurring of expenses other than any losses incurred by reason actual payment of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasanceREMIC tax or expense, bad faith or negligence in the performance then such indemnification shall be paid first out of its duties under collections on, and other proceeds of, the related Non-Serviced Mortgage Loan Pooling B Note until such point as such indemnification is paid in full or a Final Recovery Determination has been made with respect to such B Note and Servicing Agreementonly then out of collections on, and other proceeds of, the related A Note.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Hq13), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Top25), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Top23)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating Subject to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the TrusteeSection 7.03, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the TrustOwner and its present and former officers, directors, employees and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, agents and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees (including legal fees incurred in connection with the enforcement of the Servicer’s indemnification obligation under this Section 7.01) and related costs, judgments, and any other costs, liabilities, fees and expenses that the Owner or such person Persons may sustain arising in any way which arise from or as a result (i) the failure of the Servicer to perform its duties and service the Mortgage Loans in compliance with the terms of this Agreement or (ii) in connection with the breach of any representation or warranty made by the Servicer hereunder. The Servicer shall not be liable, and assumes no liability, arising out of any act or omission to act of any servicer, sub-servicer, owner, holder or originator of the Mortgage Loans or Mortgaged Properties before the Servicing Transfer Date and, to the maximum extent permitted by applicable law, the Servicer expressly disclaims such liability. Furthermore, the Servicer shall not be liable to the Owner with respect to action taken by the Servicer, or for refraining from taking any action, with respect to any Mortgage Loan or REO Property at and in conformity with the written direction of the Owner or for liability caused by or resulting from a delay occasioned by the Owner’s objection to a proposal by the Servicer hereunder, or for any liability caused by or resulting from the Owner’s breach of a representation or warranty herein or for any liability incurred by reason of the Owner’s willful misfeasance, bad faith or negligence in the performance acting or refraining from acting or any failure of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligenceperformance.
(cb) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive Owner agrees to indemnify the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliateits respective present and former officers, directordirectors, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust employees and held agents and hold them harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees (including legal fees incurred in connection with the enforcement of the Owner’s indemnification obligation under this Section 7.01) and related costs, judgments judgments, and any other costs, liabilities, fees and expenses incurred that the Servicer or such Persons may sustain in any way which arise from or are in connection with (i) any legal action relating act or omission of the Owner or any employee, agent or representative authorized to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable act or acting on the Owner’s behalf with respect to the related Non-Serviced Companion Mortgage Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasancethat constitutes negligence, bad faith or negligence willful misconduct on the part of the Owner, (ii) any actions or omissions in respect of any Mortgage Loan or REO Property of any prior servicer, sub-servicer, owner or originator of a Mortgage Loan or REO Property, (iii) the Servicer’s taking of any action, or refraining from the taking of any action, with respect to any Mortgage Loan or REO Property in conformity with this Agreement or at the written direction of the Owner, its employees, or agents, (iv) the material breach of any representation, warranty, covenant or agreement made by the Owner hereunder and (v) any Environmental Liability; provided, however, the indemnity for Environmental Liability shall not be effective with respect any liability directly and solely caused by the Servicer that would otherwise be imposed by reason of the Servicer’s negligence, bad faith or willful misconduct in the performance of of, or failure to perform, its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing this Agreement.
(c) Promptly after receipt by an indemnified party under this Section 7.01 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7.01, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability which it may have to any indemnified party under this Section 7.01, except to the extent that it has been prejudiced in any material respect, or from any liability which it may have, otherwise than under this Section 7.01. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it 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 that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party or parties shall have reasonably concluded that there may be legal defenses available to it or them and/or other indemnified parties which are different from or additional to those available to the indemnifying party, then the indemnified party or 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 party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party for expenses incurred by the indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with one local counsel, if applicable), approved by the Owner in the case of subsection (a), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii).
Appears in 5 contracts
Samples: Servicing Agreement (Altisource Residential Corp), Servicing Agreement (Altisource Residential Corp), Servicing Agreement (Altisource Residential Corp)
Indemnification; Third Party Claims. (a) The Special Master Servicer and any Affiliate, director, officer, employee, member, manager employee or agent of the Special Master Servicer (the “Special Master Servicer Indemnified Parties”) shall be indemnified and held harmless out of the collections on, and other proceeds of of, the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (collectively, “Special Master Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trusteeexpenses, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (Ai) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (Bii) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (Ciii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (Div) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Master Servicer Losses described in the preceding paragraph (including in the case of such Special Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Special Master Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Master Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeMaster Servicer) and out of the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement. The Trustee, the Certificate Administrator or the Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Master Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Master Servicer pursuant to this Section 9.248.25.
(b) The Special Master Servicer agrees to indemnify the Trust, and each other party to this Agreement Agreement, the Trust, and any director, officer, memberemployee, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such person Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder by (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Special ServicerMaster Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Administrator or the Master Servicer Depositor, as applicable, shall immediately notify the Special Master Servicer if a claim is made by a third party any Person with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the CustodianSpecial Servicer, the Trust Advisor Advisor, the Certificate Administrator or the Master Servicer, as the case may be, Trust to indemnification hereunderunder this Section 8.25(b), whereupon the Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Administrator or the Master ServicerDepositor, as the case may beapplicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Master Servicer shall not affect any rights the Trustee, the Special Servicer, the Trust or the TrusteeAdvisor, the Depositor, the Certificate Administrator, the Custodian, Administrator or the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Master Servicer’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator and the Trustee. Any expenses incurred or indemnification payments made by the Special Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Master Servicer was not culpable or such indemnifying party was found to that the Master Servicer did not have acted act with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Master Servicer and any Affiliate, director, officer, employee, member, manager employee or agent of such Non-Serviced Mortgage Loan Special Master Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, Agreement and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Master Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, Owner and hold them it harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Owner may sustain arising from or as a result in any way related to the failure of the willful misfeasance, bad faith Servicer to perform its duties and service the Mortgage Loans in strict compliance with the terms of this Agreement or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicerany Reconstitution Agreement entered into pursuant to Section 7.01. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer immediately shall immediately notify the Special Servicer Owner if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust any Reconstitution Agreement or the TrusteeMortgage Loans, shall promptly notify Fannie Mae, Freddie Mac, or xxx xxuxxxe xxxx xxspect to any claim made by a third party with respect to any Reconstitution Agreement, assume (with the Depositor, prior written consent of the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume Owner) the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Owner in respect of such claim. Any failure to so notify the Special The Servicer shall not affect follow any rights written instructions received from the Trust Owner in connection with such claim. The Owner promptly shall reimburse the Servicer 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 Trustee, failure of the Depositor, Servicer to service and administer the Certificate Administrator, Mortgage Loans in strict compliance with the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under terms of this Agreement or otherwise, unless any Reconstitution Agreement. The Owner shall indemnify the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held hold it harmless against the Trust’s pro rata share of any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs, liabilities, fees and expenses incurred that the Servicer may sustain in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable way related to the related Non-Serviced Companion Loans), reasonably requiring failure of the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Owner to perform its duties under in compliance with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementterms of this Agreement or any Reconstitution Agreement entered into pursuant to Section 7.01.
Appears in 5 contracts
Samples: Master Servicing Agreement (Structured Asset Securities Corp), Master Servicing Agreement (Structured Asset Sec Corp Mort Pas THR Certs Series 2003-7h), Master Servicing Agreement (Structured Asset Sec Corp Mort Pas THR Certs Series 2003-7h)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, Owner and hold them it harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Owner may sustain arising from or as a result in any way related to the failure of the willful misfeasance, bad faith Servicer to perform its duties and service the Mortgage Loans in strict compliance with the terms of this Agreement or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicerany Reconstitution Agreement entered into pursuant to Section 7.01. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer immediately shall immediately notify the Special Servicer Owner if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust any Reconstitution Agreement or the TrusteeMortgage Loans, the Depositorshall promptly notify Fannie Mae, the Certificate AdministratorFreddie Mac, the Custodian, the Trust Advisor or the Master Servicertrustee with respect to any claim maxx xx a xxirx xxxxx with respect to any Reconstitution Agreement, as assume (with the case may be, to indemnification hereunder, whereupon prior written consent of the Special Servicer shall assume Owner) the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Owner in respect of such claim. Any failure to so notify the Special The Servicer shall not affect follow any rights written instructions received from the Trust Owner in connection with such claim. The Owner promptly shall reimburse the Servicer 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 Trustee, failure of the Depositor, Servicer to service and administer the Certificate Administrator, Mortgage Loans in strict compliance with the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under terms of this Agreement or otherwise, unless any Reconstitution Agreement. The Owner shall indemnify the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held hold it harmless against the Trust’s pro rata share of any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs, liabilities, fees and expenses incurred that the Servicer may sustain in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable way related to the related Non-Serviced Companion Loans), reasonably requiring failure of the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Owner to perform its duties under in compliance with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementterms of this Agreement or any Reconstitution Agreement entered into pursuant to Section 7.01.
Appears in 4 contracts
Samples: Master Servicing Agreement (Structured Asset Sec Mort Pass Thru Cert Ser 2002-22h), Master Servicing Agreement (Structured Asset Sec Corp Mort Pass THR Certs Ser 2003-33h), Master Servicing Agreement (Structured Asset Sec Corp Mort Pass THR Certs Ser 2003-33h)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent Each of the Special Servicer Servicer, the Depositor, and the Seller (solely for the “Special Servicer Indemnified purpose of this Section 5.21, the "Indemnifying Parties”") shall be indemnified agrees to indemnify and held harmless out to hold each of the proceeds of Servicer, the Mortgage LoansDepositor, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or Seller, the Master Servicer pursuant to any provision Certificate Insurer and each Certificateholder (solely for the purpose of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds ofSection 5.21, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1"Indemnified Parties") if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may the Indemnified Parties may, respectively, sustain arising from in any way related to the failure of any one or as a result more of the willful misfeasance, bad faith or negligence Indemnifying Parties to perform its respective duties in compliance with the performance terms of duties hereunder or by reason of negligent disregard of obligations this Agreement. Each Indemnified Party and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer other Indemnified Parties if a claim is made by a third party with respect to this Agreement or Agreement, and the Specially Serviced Mortgage Loans entitling Servicer shall with the Trust or the Trustee, the Depositor, consent of the Certificate AdministratorInsurer, the Custodiansuch consent not to be unreasonably withheld, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including reasonable counsel feesfees approved by the Certificate Insurer, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Indemnified Parties in respect of such claim. Any The Trustee shall, out of the assets of the Trust Fund, reimburse the Servicer in accordance with Section 5.14 hereof for all amounts advanced by it pursuant to the preceding sentence except when the claim relates directly to the failure of the Servicer to so notify service and administer the Special Servicer Mortgages in compliance with the terms of this Agreement; provided, that the Servicer's indemnity hereunder shall not affect be in any rights manner conditioned on the Trust availability of funds for such reimbursement.
(b) The Trustee, at the written request of the Servicer (which the Trustee may conclusively rely on) may, if necessary, reimburse the Servicer from amounts otherwise distributable on the Class R Certificates for all amounts advanced by the Servicer pursuant to Section 4.4(a)(ii) of the Purchase and Sale Agreement, except when the claim relates directly to the failure of the Servicer, if it is, or is an Affiliate of, the Seller, to perform its obligations to service and administer the Mortgages in compliance with the terms of the Purchase and Sale Agreement, or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct failure of the Special Servicer was not culpable or such indemnifying party was found Seller to not have acted perform its duties in compliance with willful misfeasance, bad faith or negligencethe terms of this Agreement.
(c) The indemnification provided in Sections 9.24(a) and 9.24(bTrustee, at the written request of the Servicer (which the Trustee may conclusively rely on) shall survive reimburse the termination Seller from amounts otherwise distributable on the Class R Certificates for all amounts advanced by the Seller pursuant to the second sentence of this Agreement and the termination or resignation Section 4.4(a)(ii) of the Special Servicer, Purchase and Sale Agreement except when the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable relevant claim relates directly to the related Non-Serviced Companion Loans), reasonably requiring failure of the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Seller to perform its duties under in compliance with the related Non-Serviced Mortgage Loan Pooling terms of the Purchase and Servicing Sale Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Home Equity Securitization Corp), Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp), Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager employee or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless by the Trust, out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any the A/B Notes Mortgage Loan (including REO Loans), if and to the extent that the matter relates to such A/B Mortgage Loan) against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative Trustee or the Master Servicer pursuant to any provision of this Agreement, Agreement in each case and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers employees and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeSpecial Servicer) and the Trust shall pay, from amounts on deposit in the Collection Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (andtermination of this Agreement and the termination or resignation of the Special Servicer. Any expenses incurred or indemnification payments made by the Trust shall be reimbursed by the Special Servicer, if and to the extent a court of competent jurisdiction makes a final, non-appealable judgment that the amount due Special Servicer was found to have acted with willful misfeasance, bad faith or negligence. Notwithstanding the foregoing, if such loss, liability or expense relates specifically to a particular Serviced Pari Passu Mortgage Loan (or another Mortgage Loan included in the Trust) or a particular Serviced Companion Mortgage Loan, then such indemnification shall be paid from out of collections on, and other proceeds of, any such Serviced Pari Passu Mortgage Loan, other Mortgage Loan or Serviced Companion Loan or Mortgage Loan, as applicable and not out of proceeds of any related B Note. If such loss, as set forth above, out of the related Serviced Companion Loan Custodial Account liability or the related expense relates to an A/B Whole Mortgage Loan Custodial Account) any payments certified by the Special Servicer but does not relate to the Master Servicerrelated A Note and does not relate primarily to the administration of the Trust or any REMIC formed hereunder or to any determination respecting the amount, payment or avoidance of any tax under the REMIC provisions of the Code or the actual payment of any REMIC tax or expense, then such indemnification shall be paid first out of collections on, and other proceeds of, the Trustee related B Note until such point as such indemnification is paid in full or a Final Recovery Determination has been made with respect to such B Note and only then out of collections on, and other proceeds of, the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24related A Note.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement the Trustee, the Fiscal Agent, the Depositor, the Master Servicer, the Paying Agent and any director, officer, member, manager, employee or agent or Controlling Person thereofof the Trustee, the Fiscal Agent, the Depositor and the Master Servicer, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Trust or the Trustee, the Fiscal Agent, the Depositor, the Paying Agent or the Master Servicer may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Fiscal Agent, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Fiscal Agent, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Fiscal Agent, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Fiscal Agent, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s 's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Paying Agent or the Trustee or Fiscal Agent. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement initial Special Servicer and the termination Depositor expressly agree that the only information furnished by or resignation on behalf of the Special Servicer, Servicer for inclusion in the Certificate Administrator, Preliminary Prospectus Supplement and the Custodian, Final Prospectus Supplement is the Trust Advisor, information set forth in the paragraph under the caption "Servicing of The Mortgage Loans - The Master Servicer or and Special Servicer--Special Servicer" of the TrusteePreliminary Prospectus Supplement and Final Prospectus Supplement.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager employee or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s 's pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Mortgage Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s 's willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Top16), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Top16), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Top18)
Indemnification; Third Party Claims. (a) The Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Master Servicer (the “Special Master Servicer Indemnified Parties”) shall be indemnified and held harmless out of the collections on, and other proceeds of of, the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (collectively, “Special Master Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trusteeexpenses, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (Ai) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (Bii) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (Ciii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (Div) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Master Servicer Losses described in the preceding paragraph (including in the case of such Special Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Special Master Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Master Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeMaster Servicer) and out of the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement. The Trustee, the Certificate Administrator or the Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Master Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Master Servicer pursuant to this Section 9.248.25.
(b) The Special Master Servicer agrees to indemnify the Trust, and each other party to this Agreement Agreement, the Trust, and any director, officer, member, manager, employee or employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such person Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder by (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Special ServicerMaster Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master Servicer Depositor, as applicable, shall immediately notify the Special Master Servicer if a claim is made by a third party any Person with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunderunder this Section 8.25(b), whereupon the Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master ServicerDepositor, as the case may beapplicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Master Servicer shall not affect any rights the Trustee, the Special Servicer, the Trust or the TrusteeAdvisor, the Depositor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Master Servicer’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee. Any expenses incurred or indemnification payments made by the Special Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Master Servicer was not culpable or such indemnifying party was found to that the Master Servicer did not have acted act with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Master Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, Agreement and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Non- Serviced Mortgage Loan Special Master Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C12), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C11), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C10)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C8), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C8), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C5)
Indemnification; Third Party Claims. (a) The Each Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of the each such Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified by the Trust, and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action or claim relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B NotesLoan, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses Agreement, and (ii) any action properly taken by the such Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the such Special Servicer by the Trustee, the Controlling Class Representative Trustee or the applicable Master Servicer pursuant to any provision of this Agreement, and the such Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees, members, managers and employees or agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the such Special Servicer of any information included by the such Special Servicer in the report required to be provided by the such Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The applicable Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trusteesuch Special Servicer) and the Trust shall pay, from amounts on deposit in the Collection applicable Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (andtermination of this Agreement and the termination or resignation of such Special Servicer. Any expenses incurred or indemnification payments made by the Trust shall be reimbursed by such Special Servicer, if and to the extent a court of competent jurisdiction makes a final, non-appealable judgment that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the such Special Servicer was found to the Master Servicerhave acted with willful misfeasance, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24bad faith or negligence.
(b) The Each Special Servicer agrees to indemnify the Trust, and each other party to this Agreement the Trustee, the Depositor, the applicable Master Servicer, the Paying Agent and any directorpartner, officerrepresentative, Affiliate, member, manager, employee or director, officer, employee, agent or Controlling Person thereofof the Trustee, the Depositor and the applicable Master Servicer, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Trust or the Trustee, the Depositor, the Paying Agent or the applicable Master Servicer may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of such Special Servicer's duties hereunder or by reason of negligent disregard of such Special Servicer's obligations and duties hereunder by the such Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer shall immediately notify the such Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be, to indemnification hereunder, whereupon the such Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the such Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s 's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of such Special Servicer, the Paying Agent or the Trustee. Any expenses incurred or indemnification payments made by the such Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the such Special Servicer was not culpable of willful misfeasance, bad faith or such indemnifying negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party was is found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement Each initial applicable Special Servicer and the termination Depositor expressly agree that the only information furnished by or resignation on behalf of such Special Servicer for inclusion in the Preliminary Prospectus Supplement and the Final Prospectus Supplement is the information set forth in the paragraphs under the caption (i) "TRANSACTION PARTIES--The Special Servicers--The General Special Servicer," with respect to the General Special Servicer, and (ii) "TRANSACTION PARTIES--The Special Servicers--National Consumer Cooperative Bank," with respect to the Certificate AdministratorCo-op Special Servicer, of the Custodian, the Trust Advisor, the Master Servicer or the TrusteePreliminary Prospectus Supplement and Final Prospectus Supplement.
(d) Any NonThe 2007-Serviced Mortgage Loan HQ11 Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of such Nonthe 2007-Serviced Mortgage Loan HQ11 Special Servicer shall be indemnified by the Trust and held harmless against (i) the Trust’s 's pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Nonthe 2007-Serviced Mortgage Loan HQ11 Pooling and Servicing Agreement and this Agreement, and relating to any the Non-Trust-Serviced Mortgage Pari Passu Loan (but excluding any such losses allocable to the related Non-Trust Serviced Companion LoansLoan), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Nonthe 2007-Serviced Mortgage Loan HQ11 Special Servicer’s 's willful misfeasance, bad faith or negligence in the performance of its duties under the related Non2007-Serviced Mortgage Loan HQ11 Pooling and Servicing AgreementAgreement and (ii) any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses relating to the Non-Trust-Serviced Pari Passu Loan, but only to the extent that such losses arise out of the actions of the General Master Servicer, the General Special Servicer or the Trustee, and only to the extent that such actions are in violation of such party's duties under the provisions of the this Agreement and to the extent that such actions are the result of such party's negligence, bad faith or willful misconduct.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq13), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq13), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq13)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, Owner and hold them it harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Owner may sustain arising from or as a result in any way related to the failure of the willful misfeasance, bad faith Servicer to perform its duties and service the Mortgage Loans in strict compliance with the terms of this Agreement or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicerany Reconstitution Agreement entered into pursuant to Section 7.01. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer immediately shall immediately notify the Special Servicer Owner if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust any Reconstitution Agreement or the TrusteeMortgage Loans, the Depositorshall promptly notify Fannie Mae, the Certificate AdministratorFreddie Mac, the Custodian, the Trust Advisor or the Master Servicertrustee with respect to any claim xxxx xy x thxxx xxxty with respect to any Reconstitution Agreement, as assume (with the case may be, to indemnification hereunder, whereupon prior written consent of the Special Servicer shall assume Owner) the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Owner in respect of such claim. Any failure to so notify the Special The Servicer shall not affect follow any rights written instructions received from the Trust Owner in connection with such claim. The Owner promptly shall reimburse the Servicer 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 Trustee, failure of the Depositor, Servicer to service and administer the Certificate Administrator, Mortgage Loans in strict compliance with the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under terms of this Agreement or otherwise, unless any Reconstitution Agreement. The Owner shall indemnify the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held hold it harmless against the Trust’s pro rata share of any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs, liabilities, fees and expenses incurred that the Servicer may sustain in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable way related to the related Non-Serviced Companion Loans), reasonably requiring failure of the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Owner to perform its duties under in compliance with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementterms of this Agreement or any Reconstitution Agreement entered into pursuant to Section 7.01.
Appears in 3 contracts
Samples: Master Servicing Agreement (Structured Asset Securities Corp), Master Servicing Agreement (Structured Asset Securities Corp), Master Servicing Agreement (Structured Asset Securities Corp)
Indemnification; Third Party Claims. 7.1.1. The Servicer shall indemnify the Owners, its affiliates and their respective officers, directors, employees and agents (acollectively, “Owner Indemnitees”) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent hold each of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified Owner Indemnitees harmless from and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees third party claims and Damages that the Owners and the Owner Indemnitees may sustain to the extent resulting from or related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) a breach of Servicer’s representations, warranties and covenants set forth in this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special failure of Servicer to perform its duties and service the Mortgage Loans in accordance compliance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; Agreement or (Biii) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal negligent, reckless or wrongfully intended action or omission of the Servicer. The related Owner shall promptly notify the Servicer of any claim against covered hereby; provided, however, that the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance Servicer shall not be relieved of its indemnification obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject hereunder due to the related Intercreditor Agreement) Owner’s failure to give such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and notice except to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds ofServicer has been prejudiced thereby. In connection with the Servicer’s indemnification obligations hereunder, the B Note or B Notes related Servicer may assume (with the prior written consent of the Owners and with counsel reasonably satisfactory to such A/B Whole Loan, and (ythe Owners) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all reasonable expenses in connection therewith, including reasonable counsel fees, and promptly pay, discharge and satisfy any final judgment or decree which may be entered against it the Owners or them any other Owner Indemnitees in respect of such claim. The Master related Owner promptly shall reimburse the Servicer shall promptly make from for all amounts advanced by it pursuant to the Collection Account (and, if and preceding sentence except to the extent that the amount due shall be paid such claim results from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, arises out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer ’s indemnification pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify 7.1.1, the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result failure of the willful misfeasanceServicer to service and administer the Mortgage Loans or REO Properties in strict compliance with the terms of this Agreement, or the negligence, bad faith or negligence in willful misconduct of the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense agrees that it will not enter into any settlement of any such claim without the consent of the Owners (with counsel reasonably satisfactory to which consent shall be in the Trusteesole and absolute discretion the Owners) and such other Owner Indemnitees.
7.1.2. The related Owner shall indemnify, defend and hold Servicer, its Affiliates and each of their respective officer, directors, members, managers, employees, agents, and representatives (collectively, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor “Servicer Indemnitees”) harmless from any and all third-party claims and Damages incurred by or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy asserted against any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect individuals or entities arising out of or based upon (i) any rights the Trust breach of any representation, warranty or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under covenant made by such Owner in this Agreement or otherwise, unless (ii) the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by compliance with the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct written instructions of the Special Servicer was Owner to the extent such instructions are not culpable or such indemnifying party was found to not have acted in compliance with willful misfeasance, bad faith or negligenceApplicable Requirements.
(c) 7.1.3. The indemnification provided in Sections 9.24(a) and 9.24(b) provisions of this Section 7.1 shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 3 contracts
Samples: Loan Servicing Agreement (Franklin Credit Management Corp), Loan Servicing Agreement (Franklin Credit Holding Corp/De/), Loan Servicing Agreement (Franklin Credit Holding Corp/De/)
Indemnification; Third Party Claims. (a) The Special Subject to Section 6.3, the Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent of hold harmless the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), Owner against any and all claims, losses, penalties, fines, forfeitures, legal fees and Losses that the Owner may sustain in any way related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special failure of such Servicer by to service the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred Mortgage Loans in connection compliance with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; provided, however, the Servicer shall not be liable hereunder (Ba) which constitutes a Servicing Advance that is otherwise reimbursable to the extent such Losses directly result from the Custodian's negligent action, negligent failure to act, bad faith, willful misconduct or breach under this the Custodial Agreement; (C, dated as of November 1, 2003, among the Owner, the Servicer and the Custodian,(b) incurred in connection with respect to any legal action or claim against inaction in accordance with the party seeking indemnification, direction or consent of the Owner or (c) resulting from any breach on the part of that Owner's failure to respond to a request by the Servicer for direction or consent in accordance with Section 3.1(c) hereof. The Servicer shall immediately notify the Owner if a claim is made by a third party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under respect to this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeLoans. The Special Servicer shall assume (with the written consent of the Owner) the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all reasonable expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it the Servicer or them the Owner in respect of such claim. The Master Servicer shall promptly make follow any written instructions received from the Collection Account (and, if Owner in connection with any such claim and the Owner shall promptly reimburse the Servicer for all amounts reasonably advanced by it pursuant to the extent that preceding sentence, except when the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the claim (a) is related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer's obligations to indemnify the Owner pursuant hereto, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special results from the failure of the Servicer agrees to indemnify service the Trust, and each other party to Mortgage Loans in compliance with the terms of this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising (c) results from or as a result of the Servicer's willful misfeasancemisconduct, bad faith or negligence in the performance of performing its duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicerunder this Agreement. The Trustee, Owner shall indemnify and hold harmless the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and Losses that the Servicer may sustain as a result of (a) any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan act or omission on the part of the Owner or (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason b) a breach of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasanceof the Owner's representations, bad faith warranties or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementcovenants or obligations contained herein.
Appears in 3 contracts
Samples: Assignment, Assumption and Recognition Agreement (GSAA Home Equity Trust 2006-4), Trust Agreement (GSAA Home Equity Trust 2005-4), Assignment, Assumption and Recognition Agreement (GSAA Home Equity Trust 2006-3)
Indemnification; Third Party Claims. is hereby amended by deleting Subsection (a) and replacing it with the following:
(a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of shall indemnify the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the TrusteeSeller, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master ServicerFund, the Trustee and the Certificate Administrator as required to be made to the Special Master Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold each of 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, liabilities, fees and expenses that any of such person parties may sustain arising from or as a result in any way related to the failure of the willful misfeasance, bad faith or negligence Servicer to perform its duties and service the Mortgage Loans in strict compliance with the performance terms of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicerthis Agreement. The TrusteeServicer immediately shall notify the Seller, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify and the Special Servicer Trustee or any other relevant party if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling Loans, assume (with the Trust prior written consent of the indemnified party, which consent shall not be unreasonably withheld or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume delayed) the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them any of such parties in respect of such claim. Any failure to so notify the Special The Servicer shall not affect follow any rights written instructions received from the Trustee in connection with such claim. The Servicer shall provide the Trustee with a written report of all expenses and advances incurred by the Servicer pursuant to this Section 9.01, and the Trustee from the assets of the Trust or Fund promptly shall reimburse the Trustee, Servicer for all amounts advanced by it pursuant to the Depositor, preceding sentence except when the Certificate Administrator, claim is in any way relates to the Custodian, failure of the Trust Advisor or Servicer to service and administer the Master Servicer may have to indemnification under Mortgage Loans in strict compliance with the terms of this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasancegross negligence, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination willful misconduct of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 3 contracts
Samples: Servicing Agreement (Structured Asset Securities Corp Mor Pas THR Cer Se 2002-1a), Servicing Agreement (Structured Asset Securities Corp Mor Pas THR Cer Ser 2002-8a), Servicing Agreement (Structured Asset Sec Corp Mort Pas THR Cert Ser 2002 5a)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Trust, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and “control persons,” as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the each a “Special Servicer Indemnified PartiesParty”) shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer’s representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party’s gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(b) hereof for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such failure.
(b) None of the Loan Originator, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originator, the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerLoan Originator, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Loan Originator, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicerofficers, as the case employees, agents may be) rely in good faith on any document of any kind which, prima facie, is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Loan Originator agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement Depositor and the termination Noteholders, as the ultimate assignees from the Depositor (each an “Originator Indemnified Party,” together with the Servicer Indemnified Parties, the “Indemnified Parties”), from and against any loss, liability, expense, damage, claim or resignation injury arising out of or based on (i) any breach of any representation, warranty or covenant of the Special ServicerLoan Originator, the Certificate AdministratorServicer or their Affiliates, in any Basic Document, including, without limitation, the Custodianorigination or prior servicing of the Loans by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Loan Originator, the Trust AdvisorServicer or their Affiliates, and (ii) any untrue statement by the Loan Originator, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share its Affiliates of any material fact or any such Person’s failure to state a material fact necessary to make such statements not misleading with respect to any such Person’s statements contained in any Basic Document, including, without limitation, any Officer’s Certificate, statement, report or other document or information prepared by any such Person and all claimsfurnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, losseswithout limitation, penaltiessuch written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Loans or any such Person’s business, finesoperations or financial condition, forfeitures, legal including reasonable attorneys’ fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage actual or threatened action, proceeding or claim; provided that the Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Originator shall not indemnify an Originator Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicerinjury is due to either an Originator Indemnified Party’s willful misfeasance, bad faith or negligence or by reason of an Originator Indemnified Party’s reckless disregard of its obligations hereunder; provided, further, that the Loan Originator shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable hereunder or under any provision of the Basic Documents to an Originator Indemnified Party for any losses in respect of the performance of its duties the Loans, the insolvency, bankruptcy, delinquency, creditworthiness and similar characteristics of the Borrowers under the Loans, the uncollectability of any principal, interest, and any other charges (including late fees) under such loans, changes in the market value of the Loans or other similar investment risks associated with the Loans arising from a breach of any representation or warranty set forth in Exhibit E hereto, the sole remedy for the breach of which is provided in Section 3.06 hereof. The provisions of this indemnity shall run directly to and be enforceable by an Originator Indemnified Party subject to the limitations hereof.
(d) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a “Third Party Claim”), such Indemnified Party shall notify the related Non-Serviced Mortgage Loan Pooling indemnifying parties (each an “Indemnifying Party”) in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party’s receipt thereof, copies of all notices and Servicing Agreementdocuments (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any claim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, while maintaining control over its own defense, the Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, and the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of such terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request; provided, however, that the Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party; provided, further, that the Indemnifying Party shall have the right to reject the selection of counsel by the Indemnified Party if the Indemnifying Party reasonably determines that such counsel is inappropriate in light of the nature of the claim or litigation and shall have the right to assume the defense of such claim or litigation if the Indemnifying Party determines that the manner of defense of such claim or litigation is unreasonable.
Appears in 3 contracts
Samples: Sale and Servicing Agreement (H&r Block Inc), Sale and Servicing Agreement (H&r Block Inc), Sale and Servicing Agreement (H&r Block Inc)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, Owner and hold them it harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Owner may sustain arising from or as a result in any way related to the failure of the willful misfeasance, bad faith Servicer to perform its duties and service the Mortgage Loans in strict compliance with the terms of this Agreement or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicerany Reconstitution Agreement entered into pursuant to Section 7.01. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer immediately shall immediately notify the Special Servicer Owner if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust any Reconstitution Agreement or the TrusteeMortgage Loans, the Depositorshall promptly notify Fannie Mae, the Certificate AdministratorFreddie Mac, the Custodian, the Trust Advisor or the Master Servicertrustee with respect to any claim made by x xxxrx xarxx xxxx respect to any Reconstitution Agreement, as assume (with the case may be, to indemnification hereunder, whereupon prior written consent of the Special Servicer shall assume Owner) the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Owner in respect of such claim. Any failure to so notify the Special The Servicer shall not affect follow any rights written instructions received from the Trust Owner in connection with such claim. The Owner promptly shall reimburse the Servicer 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 Trustee, failure of the Depositor, Servicer to service and administer the Certificate Administrator, Mortgage Loans in strict compliance with the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under terms of this Agreement or otherwise, unless any Reconstitution Agreement. The Owner shall indemnify the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held hold it harmless against the Trust’s pro rata share of any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs, liabilities, fees and expenses incurred that the Servicer may sustain in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable way related to the related Non-Serviced Companion Loans), reasonably requiring failure of the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Owner to perform its duties under in compliance with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementterms of this Agreement or any Reconstitution Agreement entered into pursuant to Section 7.01.
Appears in 3 contracts
Samples: Master Servicing Agreement (Structured Asset Sec Corp Mor Pass Thru Cer Ser 2002-10h), Master Servicing Agreement (Structured Asset Sec Corp Mor Pass Thru Cer Ser 2002-10h), Master Servicing Agreement (Structured Asset Sec Corp Mor Pass Thru Cer Ser 2002-10h)
Indemnification; Third Party Claims. (a) The Special Subject to Section 6.3, the Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent of hold harmless the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), Owner against any and all claims, losses, penalties, fines, forfeitures, legal fees and Losses that the Owner may sustain in any way related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special failure of such Servicer by to service the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred Mortgage Loans in connection compliance with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; provided, however, the Servicer shall not be liable hereunder (Ba) which constitutes a Servicing Advance that is otherwise reimbursable to the extent such Losses directly result from the Custodian's negligent action, negligent failure to act, bad faith, willful misconduct or breach under this the Custodial Agreement; (C, dated as of November 1, 2003, among the Owner, Countrywide and the Custodian,(b) incurred in connection with respect to any legal action or claim against inaction in accordance with the party seeking indemnification, direction or consent of the Owner or (c) resulting from any breach on the part of that Owner's failure to respond to a request by the Servicer for direction or consent in accordance with Section 3.1(c) hereof. The Servicer shall immediately notify the Owner if a claim is made by a third party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under respect to this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeLoans. The Special Servicer shall assume (with the written consent of the Owner) the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all reasonable expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it the Servicer or them the Owner in respect of such claim. The Master Servicer shall promptly make follow any written instructions received from the Collection Account (and, if Owner in connection with any such claim and the Owner shall promptly reimburse the Servicer for all amounts reasonably advanced by it pursuant to the extent that preceding sentence, except when the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the claim (a) is related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer's obligations to indemnify the Owner pursuant hereto, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special results from the failure of the Servicer agrees to indemnify service the Trust, and each other party to Mortgage Loans in compliance with the terms of this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising (c) results from or as a result of the Servicer's willful misfeasancemisconduct, bad faith or negligence in the performance of performing its duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicerunder this Agreement. The Trustee, Owner shall indemnify and hold harmless the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and Losses that the Servicer may sustain as a result of (a) any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan act or omission on the part of the Owner or (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason b) a breach of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasanceof the Owner's representations, bad faith warranties or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementcovenants or obligations contained herein.
Appears in 2 contracts
Samples: Trust Agreement (GSAA Home Equity Trust 2005-4), Master Servicing and Trust Agreement (Gsaa Home Equity Trust 2004-8)
Indemnification; Third Party Claims. (a) The Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Master Servicer (the “Special Master Servicer Indemnified Parties”) shall be indemnified and held harmless out of the collections on, and other proceeds of of, the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (collectively, “Special Master Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trusteeexpenses, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (Ai) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (Bii) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (Ciii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (Div) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Master Servicer Losses described in the preceding paragraph (including in the case of such Special Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Special Master Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Master Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeMaster Servicer) and out of the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement. The Trustee, the Certificate Administrator or the Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Master Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Master Servicer pursuant to this Section 9.248.25.
(b) The Special Master Servicer agrees to indemnify the Trust, and each other party to this Agreement Agreement, the Trust, and any director, officer, memberemployee, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such person Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder by (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Special ServicerMaster Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master Servicer Depositor, as applicable, shall immediately notify the Special Master Servicer if a claim is made by a third party any Person with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunderunder this Section 8.25(b), whereupon the Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master ServicerDepositor, as the case may beapplicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Master Servicer shall not affect any rights the Trustee, the Special Servicer, the Trust or the TrusteeAdvisor, the Depositor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Master Servicer’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee. Any expenses incurred or indemnification payments made by the Special Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer Master Xxxxxxxx was not culpable or such indemnifying party was found to that the Master Servicer did not have acted act with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Master Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, Agreement and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Master Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C8), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C8)
Indemnification; Third Party Claims. (a) The Special Servicer agrees to indemnify the Owner, its successors and assigns, and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer Owner, and the NIMs Insurer (the each an “Special Servicer Indemnified PartiesPerson”) shall be indemnified and held hold each such Indemnified Person harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans from and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person Indemnified Person may sustain arising from or as a result in any way related to the failure of the willful misfeasanceServicer to perform its duties and service the Mortgage Loans in strict compliance with the terms of this Agreement and for breach of any representation, bad faith warranty or negligence in covenant of the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special ServicerServicer contained herein. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a Owner and the NIMs Insurer in accordance with Section 11.04 herein of any claim is made by a third party against the Servicer, the Owner or both, with respect to this Agreement or Agreement, the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer and/or any alleged act by Owner. The Owner shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all costs and expenses in connection therewith, (including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and expenses) of defending the Servicer and itself against any such claim other than (i) any loss, liability or expense related costs, judgments and any other costs, liabilities, fees and expenses incurred to the Servicer’s failure to perform Servicer’s duties in connection strict compliance with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement; and (ii) any loss, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel liability or the incurring of expenses other than any losses expense incurred by reason of any Non-Serviced Mortgage Loan Special the Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under hereunder or by reason of reckless disregard of its obligations and duties hereunder. The Owner shall promptly pay, discharge and satisfy any judgment or decree that may be entered against it in respect of such claim. If in any event, the Servicer incurred any expenses or fees related Non-Serviced Mortgage Loan Pooling and Servicing Agreementto the above, the Owner shall reimburse the Servicer within thirty (30) Business Days upon receipt of an invoice from the Servicer of all amounts advanced by the Servicer pursuant to the preceding sentence.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Opteum Mortgage Acceptance Corp. Asset-Backed Pass-Through Certificates, Series 2005-4), Pooling and Servicing Agreement (Opteum Mortgage Acceptance Corp Asset Backed Pass-Through Certificates, Series 2005-3)
Indemnification; Third Party Claims. (a) The Special Servicing Administrator agrees to indemnify and hold harmless the Purchaser, the Master Servicer and any Affiliatesuccessor servicer and their respective officers, directordirectors, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified agents and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans affiliates from and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees (including, without limitation, legal fees incurred in connection with the enforcement of the Seller’s indemnification obligation under this Subsection 12.01) and related costs, judgments, and any other costs, liabilities, fees and expenses that any such person persons may sustain arising from or as a result in any way related to the failure of the willful misfeasance, bad faith Servicing Administrator to service the Mortgage Loans in compliance with the terms of this Agreement or negligence in the performance of duties hereunder or by reason of negligent disregard of otherwise comply with its obligations and duties hereunder by covenants under this Agreement.
(b) The Servicing Administrator shall promptly notify the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or Purchaser and the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling Loans, and the Trust or Servicing Administrator shall assume (with the Trustee, written consent of the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Purchaser or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume ) the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect . If the Servicing Administrator has assumed the defense of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the TrusteePurchaser, the Depositor, Servicing Administrator shall provide the Certificate Administrator, the Custodian, the Trust Advisor Purchaser or the Master Servicer may have with a written report of all expenses and advances incurred by the Servicing Administrator pursuant to indemnification under this Subsection 12.01 and the Servicing Administrator shall be entitled to reimbursement for all amounts advanced by it pursuant to the preceding sentence except when the claim in any way relates to the failure of the Servicing Administrator to service the Mortgage Loans in accordance with the terms of this Agreement or otherwise, unless the Special Servicer’s defense of such claim is otherwise materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted comply with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) its obligations and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and covenants under this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 2 contracts
Samples: Mortgage Loan Purchase and Servicing Agreement, Mortgage Loan Purchase and Servicing Agreement (Five Oaks Investment Corp.)
Indemnification; Third Party Claims. (a) The Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of each the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified by the Trust, and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action or claim relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B NotesLoan, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses Agreement, and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative Trustee or the applicable Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees, members, managers and employees or agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeSpecial Servicer) and the Trust shall pay, from amounts on deposit in the Collection applicable Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (andtermination of this Agreement and the termination or resignation of the Special Servicer. Any expenses incurred or indemnification payments made by the Trust shall be reimbursed by the Special Servicer, if and to the extent a court of competent jurisdiction makes a final, non-appealable judgment that the amount due Special Servicer was found to have acted with willful misfeasance, bad faith or negligence. Notwithstanding the foregoing, if such loss, liability or expense relates specifically to a Serviced Companion Loan, then such indemnification shall be paid from out of collections on, and other proceeds of, any such Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24Loan.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement the Trustee, the Depositor, the applicable Master Servicer, the Paying Agent and any directorpartner, officerrepresentative, Affiliate, member, manager, employee or director, officer, employee, agent or Controlling Person thereofof the Trustee, the Depositor and the applicable Master Servicer, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Trust or the Trustee, the Depositor, the Paying Agent or the applicable Master Servicer may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of the Special Servicer's duties hereunder or by reason of negligent disregard of the Special Servicer's obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s 's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Paying Agent or the Trustee. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable of willful misfeasance, bad faith or such indemnifying negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party was is found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement initial Special Servicer and the termination Depositor expressly agree that the only information furnished by or resignation on behalf of the Special Servicer for inclusion in the Preliminary Prospectus Supplement and the Final Prospectus Supplement is the information set forth in the paragraphs under the caption "TRANSACTION PARTIES--The Special Servicer--The Special Servicer," with respect to the Special Servicer, of the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the TrusteePreliminary Prospectus Supplement and Final Prospectus Supplement.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Iq12), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Iq12)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Trust, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and "control persons," as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the “Special each a "Servicer Indemnified Parties”Party") shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party's gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(b) hereof for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such failure.
(b) None of the Loan Originator, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originator, the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerLoan Originator, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Loan Originator, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicerofficers, as the case employees, agents may be) rely in good faith on any document of any kind which, prima facie, is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Loan Originator agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement Depositor and the termination Noteholders, as the ultimate assignees from the Depositor (each an "Originator Indemnified Party," together with the Servicer Indemnified Parties, the "Indemnified Parties"), from and against any loss, liability, expense, damage, claim or resignation injury arising out of or based on (i) any breach of any representation, warranty or covenant of the Special ServicerLoan Originator, the Certificate AdministratorServicer or their Affiliates, in any Basic Document, including, without limitation, the Custodianorigination or prior servicing of the Loans by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Loan Originator, the Trust AdvisorServicer or their Affiliates, and (ii) any untrue statement by the Loan Originator, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share its Affiliates of any material fact or any such Person's failure to state a material fact necessary to make such statements not misleading with respect to any such Person's statements contained in any Basic Document, including, without limitation, any Officer's Certificate, statement, report or other document or information prepared by any such Person and all claimsfurnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, losseswithout limitation, penaltiessuch written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Loans or any such Person's business, finesoperations or financial condition, forfeitures, legal including reasonable attorneys' fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage actual or threatened action, proceeding or claim; provided that the Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Originator shall not indemnify an Originator Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s injury is due to either an Originator Indemnified Party's willful misfeasance, bad faith or negligence or by reason of an Originator Indemnified Party's reckless disregard of its obligations hereunder; provided, further, that the Loan Originator shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable to an Originator Indemnified Party for any losses in respect of the performance of its duties the Loans or Residual Securities, the creditworthiness of the Borrowers under the Loans, changes in the market value of the Loans or Residual Securities or other similar investment risks associated with the Loans or Residual Securities arising from a breach of any representation or warranty set forth in Exhibit E hereto or Section 3 of the Residual Securities Transfer Agreement, as applicable, a remedy for the breach of which is provided in Section 3.06 hereof. The provisions of this indemnity shall run directly to and be enforceable by an Originator Indemnified Party subject to the limitations hereof.
(d) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a "Third Party Claim"), such Indemnified Party shall notify the related Non-Serviced Mortgage Loan Pooling indemnifying parties (each an "Indemnifying Party") in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party's receipt thereof, copies of all notices and Servicing Agreementdocuments (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any claim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, while maintaining control over its own defense, the Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, and the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of such terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request; provided, however, that the Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party; provided, further, that the Indemnifying Party shall have the right to reject the selection of counsel by the Indemnified Party if the Indemnifying Party reasonably determines that such counsel is inappropriate in light of the nature of the claim or litigation and shall have the right to assume the defense of such claim or litigation if the Indemnifying Party determines that the manner of defense of such claim or litigation is unreasonable.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (H&r Block Inc), Sale and Servicing Agreement (H&r Block Inc)
Indemnification; Third Party Claims. (a) The Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Master Servicer (the “Special Master Servicer Indemnified Parties”) shall be indemnified and held harmless out of the collections on, and other proceeds of of, the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (collectively, “Special Master Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trusteeexpenses, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (Ai) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (Bii) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (Ciii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (Div) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Master Servicer Losses described in the preceding paragraph (including in the case of such Special Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Special Master Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Master Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeMaster Servicer) and out of the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement. The Trustee, the Certificate Administrator or the Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Master Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Master Servicer pursuant to this Section 9.248.25.
(b) The Special Master Servicer agrees to indemnify the Trust, and each other party to this Agreement Agreement, the Trust, and any director, officer, memberemployee, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such person Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder by (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Special ServicerMaster Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Administrator or the Master Servicer Depositor, as applicable, shall immediately notify the Special Master Servicer if a claim is made by a third party any Person with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the CustodianSpecial Servicer, the Trust Advisor Advisor, the Certificate Administrator or the Master Servicer, as the case may be, Trust to indemnification hereunderunder this Section 8.25(b), whereupon the Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Administrator or the Master ServicerDepositor, as the case may beapplicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Master Servicer shall not affect any rights the Trustee, the Special Servicer, the Trust or the TrusteeAdvisor, the Depositor, the Certificate Administrator, the Custodian, Administrator or the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Master Servicer’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator and the Trustee. Any expenses incurred or indemnification payments made by the Special Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Master Servicer was not culpable or such indemnifying party was found to that the Master Servicer did not have acted act with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Master Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, Agreement and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Master Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C6), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C6)
Indemnification; Third Party Claims. (a) The Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Master Servicer (the “Special Master Servicer Indemnified Parties”) shall be indemnified and held harmless out of the collections on, and other proceeds of of, the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (collectively, “Special Master Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trusteeexpenses, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (Ai) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (Bii) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (Ciii) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (Div) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Master Servicer Losses described in the preceding paragraph (including in the case of such Special Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Special Master Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Master Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to of such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Master Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeMaster Servicer) and out of the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement. The Trustee, the Certificate Administrator or the Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Master Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Master Servicer pursuant to this Section 9.248.25.
(b) The Special Master Servicer agrees to indemnify the Trust, and each other party to this Agreement Agreement, the Trust, and any director, officer, memberemployee, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that any such person Person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder by (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from not complying with or not performing such obligations), and if in any such situation the Special ServicerMaster Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master Servicer Depositor, as applicable, shall immediately notify the Special Master Servicer if a claim is made by a third party any Person with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunderunder this Section 8.25(b), whereupon the Special Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the DepositorSpecial Servicer, the Trust Advisor, the Certificate Administrator, the Custodian, the Trust Advisor Custodian or the Master ServicerDepositor, as the case may beapplicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Master Servicer shall not affect any rights the Trustee, the Special Servicer, the Trust or the TrusteeAdvisor, the Depositor, the Certificate Administrator, the Custodian, Custodian or the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Master Servicer’s defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Custodian and the Trustee. Any expenses incurred or indemnification payments made by the Special Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Master Servicer was not culpable or such indemnifying party was found to that the Master Servicer did not have acted act with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Master Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Master Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, Agreement and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Master Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C5), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C5)
Indemnification; Third Party Claims. (a) The Special Each Master Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of the Special each such Master Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified by the Trust and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action or claim relating to (i) this Agreement, any Mortgage Loans, any the Serviced Companion Loans, any B NotesLoans (as provided in the following paragraph), any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any such Master Servicer's willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or dutieshereunder. Except as provided in the following sentencesentence and subject to the provisions of Section 9.40, the indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses claims or losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any each Serviced Companion Loan or any B NoteLoan. In the case of any such Special Servicer Losses claims or losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions provisions of the Code or the actual payment of any REMIC tax or expense:
(1) , if such Special Servicer Losses claims or losses relate to a Serviced Loan PairGroup, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu the Senior Mortgage Loan Loans, as applicable, and the Serviced Companion LoanLoans, as applicable, in the relative proportions provided for in the applicable Intercreditor Co-Lender Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties indemnified parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special A Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trusteesuch Master Servicer) and out of the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim and satisfy any settlement or other disposition in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement or of the Master Servicer Servicers in such capacity. The Trustee, the Paying Agent or the Master Servicers shall promptly make from the Collection applicable Certificate Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any a Serviced Companion Loan or any B Note, as set forth described above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special applicable Master Servicer to the Master Servicer, the Trustee and the Certificate Administrator Paying Agent as required to be made to the Special applicable Master Servicer pursuant to this Section 9.248.25.
(b) The Special Each Master Servicer agrees to indemnify the Trustee, the Special Servicer, the Trust, and each other party to this Agreement the Depositor, the Paying Agent, and any directorpartner, officerrepresentative, Affiliate, member, manager, employee or director, officer, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Trustee, the Special Servicer, the Depositor, the Paying Agent and the Trust may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of such Master Servicer's duties hereunder or by reason of negligent disregard of such Master Servicer's obligations and duties hereunder by (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from being released from such obligations), and if in any such situation such Master Servicer is replaced, the Special Servicerparties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer. The Trustee, the Special Servicer, the Paying Agent or the Depositor, the Certificate Administratoras applicable, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special applicable Master Servicer if a claim is made by a third party any Person with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate AdministratorSpecial Servicer, the Custodian, Paying Agent or the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunderunder this Section 8.25(b), whereupon the Special applicable Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Special Servicer, the Paying Agent or the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may beapplicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special applicable Master Servicer shall not affect any rights the Trust or Trustee, the TrusteeSpecial Servicer, the Depositor, the Certificate Administrator, the Custodian, Paying Agent or the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special applicable Master Servicer’s 's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the applicable Master Servicer, the Special Servicer, the Paying Agent and the Trustee. Any expenses incurred or indemnification payments made by the Special applicable Master Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special applicable Master Servicer was not culpable of willful misfeasance, bad faith or such indemnifying negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party was is found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive Primary Servicer with respect to the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer MM Loans and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of such Non-Serviced Mortgage Loan Special Servicer thereof shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, its Primary Servicing Agreement (but only if, and relating to the extent that, the General Master Servicer would have been entitled to indemnification therefor under this Agreement if it were directly servicing the MM Loans, any Non-Serviced Mortgage MM Loan (but excluding any such losses allocable solely with respect to the related Non-Serviced Companion Primary Servicer for such MM Loans), any REO Property or the Certificates or any exercise of any right under this Agreement or its related Primary Servicing Agreement (limited as set forth above) reasonably requiring the use of counsel or the incurring of expenses other than any losses loss, liability or expense incurred by reason of any Non-Serviced Mortgage Loan Special such Primary Servicer’s 's willful misfeasance, bad faith or negligence in the performance of its duties thereunder. Such Primary Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to such Primary Servicer) and out of the Trust pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The indemnification provided herein shall survive the termination of this Agreement and the related Primary Servicing Agreement. The Trustee, the Paying Agent or the General Master Servicer shall promptly make from the applicable Certificate Account any payments certified by such Primary Servicer with respect to the MM Loans to the Trustee and the Paying Agent as required to be made to such Primary Servicer pursuant to this Section 8.25.
(d) The Primary Servicer with respect to the MM Loans agrees to indemnify the Trustee, the Special Servicer, the Trust, the Depositor, the Paying Agent, and any partner, representative, Affiliate, member, manager, director, officer, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that the Trustee, the Special Servicer, the Depositor, the Paying Agent and the Trust may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of such Primary Servicer's duties under this Agreement, its related Primary Servicing Agreement or by reason of negligent disregard of such Primary Servicer's obligations and duties thereunder (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from being released from such obligations), and if in any such situation such Primary Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor primary servicer. The Trustee, the Special Servicer, the Paying Agent or the Depositor, as applicable, shall immediately notify such Primary Servicer if a claim is made by any Person with respect to this Agreement, the related NonPrimary Servicing Agreement or the MM Loans (solely with respect to the Primary Servicer for the MM Loans) entitling the Trustee, the Depositor, the Special Servicer, the Paying Agent or the Trust to indemnification under this Section 8.25(d), whereupon such Primary Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Special Servicer, the Paying Agent or the Depositor, as applicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify such Primary Servicer shall not affect any rights the Trustee, the Special Servicer, the Depositor, the Paying Agent or the Trust may have to indemnification under this Agreement, the related Primary Servicing Agreement or otherwise, unless such Primary Servicer's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the related Primary Servicing Agreement and the resignation or termination of the applicable Master Servicer, the Special Servicer, the Paying Agent and the Trustee. Any expenses incurred or indemnification payments made by such Primary Servicer with respect to the MM Loans shall be reimbursed by the party so paid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of such Primary Servicer was not culpable or that such Primary Servicer did not act with willful misfeasance, bad faith or negligence.
(e) The Master Servicers shall not have any liability to the Depositor, the Trustee, the Paying Agent, the Special Servicer, any Certificateholder, any Certificate Owner, any holder of a Serviced Mortgage Loan Pooling Companion Loan, any Primary Servicer, the Placement Agent, any Underwriter, any Rating Agency or any other Person to whom it delivers information pursuant to the provisions of this Agreement for federal, state or other applicable securities law violations relating to the disclosure of such information. In the event any Person brings any claims relating to or arising from the foregoing against a Master Servicer (or any partners, representatives, Affiliates, members, managers, directors, officers, employees, agents thereof), the Trust (from amounts held in any account) shall hold harmless and Servicing Agreementindemnify such Master Servicer from any loss or expense (including attorney fees) relating to or arising from such claims.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Iq12), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Iq12)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Depositor, the Issuer, the Owner Trustee, the Co-Owner Trustee, and any Affiliate, director, officer, employee, member, manager or agent the Indenture Trustee (each an "Indemnified Party") and hold harmless each of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 9.1(d) for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this Section 9.1 shall have no force and effect with respect to such failure.
(b) The Depositor, the Owner Trustee, the Co-Owner Trustee, or the Indenture Trustee, as the case may be, shall promptly notify the Servicer if a claim is made by a third party with respect to a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement. The Servicer shall promptly notify the Indenture Trustee and the Depositor of any claim of which it has been notified pursuant to this Section 9.1 by a Person other coststhan the Depositor, liabilitiesand, in any event, shall promptly notify the Depositor of its intended course of action with respect to any claim.
(c) The Servicer shall be entitled to participate in and, upon notice to the Indemnified Party, assume the defense of any such action or claim in reasonable cooperation with, and with the reasonable cooperation of, the Indemnified Party. The Indemnified Party will have the right to employ its own counsel in any such action in addition to the counsel of the Servicer, but the fees and expenses of such counsel will be at the expense of such Indemnified Party, unless (a) the employment of counsel by the Indemnified Party at its expense has been authorized in writing by the Servicer, (b) the Servicer has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, or (c) the named parties to any such action or proceeding (including any impleaded parties) include both the Servicer and one or more Indemnified Parties, and the Indemnified Parties shall have been advised by counsel that there may be one or more legal defenses available to them which are different from or additional to those available to the Servicer. The Servicer shall not be liable for any settlement of any such claim or action unless the Servicer shall have consented thereto or be in default on its obligations hereunder. Any failure by an Indemnified Party to comply with the provisions of this Section 9.1 shall relieve the Servicer of liability only if such failure is materially prejudicial to the position of the Servicer and then only to the extent of such prejudice.
(d) Neither the Depositor nor the Servicer or any of the directors, officers, employees or agents of the Depositor or the Servicer, or members or affiliates of the Depositor shall be under any liability to the Issuer or the Securityholders for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, the Servicer or any such person may sustain arising from against the remedies provided herein for the breach of any warranties, representations or as a result covenants made herein, or against any specific liability imposed on the Depositor or the Servicer herein, or against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of the duties of the Servicer or the Depositor, as the case may be, or by reason of reckless disregard of the obligations and duties of the Servicer or the Depositor, as the case may be, hereunder. The Depositor, the Servicer and any director, officer, employee or agent of the Depositor or the Servicer, or any member or affiliate of the Depositor may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder.
(e) The Servicer and the Depositor and any director, officer, employee or agent of the Servicer or the Depositor shall be indemnified by the Issuer and held harmless against any loss, liability or expense incurred in connection with any audit, controversy or judicial proceeding relating to a governmental taxing authority or any legal action relating to this Agreement or the Securities, other than any loss, liability or expense related to any specific Loan or Loans (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Agreement) and any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent reckless disregard of obligations and duties hereunder by hereunder. Except as otherwise provided herein, neither the Special Servicer. The Depositor nor the Servicer shall be under any obligation to appear in, prosecute or defend any legal action that is not related to its respective duties under this Agreement; provided, however, that, except as otherwise provided herein, either the Depositor or the Servicer may, with the prior consent of the Indenture Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor in its discretion undertake any such action which it may deem necessary or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party desirable with respect to this Agreement or and the Specially Serviced Mortgage Loans entitling rights and duties of the Trust or parties hereto and the Trusteeinterests of the Securityholders hereunder. In such event, the Depositorlegal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel feesIssuer, and promptly pay, discharge the Depositor and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be entitled to be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct therefor out of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligenceCollection Account.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Residential Asset Funding Corp), Sale and Servicing Agreement (Home Equity Securitization Corp)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Issuer, the Paying Agent, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and “control persons,” as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the each a “Special Servicer Indemnified PartiesParty”) shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer’s representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Eligible Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party’s fraud, gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(b) hereof for its failure to perform its duties and service the Eligible Loans in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such failure; provided, further that no successor Servicer shall be liable for the actions or omissions of a predecessor Servicer.
(b) None of the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerLoan Originator, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Loan Originator, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicerofficers, as the case employees, agents may be) rely in good faith on any document of any kind which, prima facie, is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Loan Originator agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement Depositor, the Indenture Trustee and the termination Noteholders, as the ultimate assignees from the Depositor (each an “Originator Indemnified Party,” together with the Servicer Indemnified Parties, the “Indemnified Parties”), from and against any loss, liability, expense, damage, claim or resignation injury arising out of or based on (i) any breach of any representation, warranty or covenant of the Special ServicerLoan Originator, the Certificate AdministratorServicer or their Affiliates, in any Basic Document, including, without limitation, the Custodianorigination or prior servicing of the Loans by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Loan Originator, the Trust AdvisorServicer or their Affiliates, and (ii) any untrue statement by the Loan Originator, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share its Affiliates of any material fact, including, without limitation, any Officer’s Certificate, statement, report or other document or information prepared by any such Person and all claimsfurnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, losseswithout limitation, penaltiessuch written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Eligible Loans or any such Person’s business, finesoperations or financial condition, forfeitures, legal including reasonable attorneys’ fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage actual or threatened action, proceeding or claim; provided that the Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Originator shall not indemnify an Originator Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicerinjury is due to either an Originator Indemnified Party’s willful misfeasance, bad faith or negligence or by reason of an Originator Indemnified Party’s reckless disregard of its obligations hereunder; provided, further, that the Loan Originator shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable to an Originator Indemnified Party for any losses in respect of the performance of its duties the Eligible Loans, the creditworthiness of the Mortgagors under the Eligible Loans, changes in the market value of the Eligible Loans or other similar investment risks associated with the Eligible Loans arising from a breach of any representation or warranty set forth in Section 3.04 hereto, a remedy for the breach of which is provided in Section 3.05 hereof. The provisions of this indemnity shall run directly to and be enforceable by an Originator Indemnified Party subject to the limitations hereof.
(d) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a “Third Party Claim”), such Indemnified Party shall notify the related Non-Serviced Mortgage Loan Pooling indemnifying parties (each an “Indemnifying Party”) in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party’s receipt thereof, copies of all notices and Servicing Agreementdocuments (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any claim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, while maintaining control over its own defense, the Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, and the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of such terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request; provided, however, that the Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party; provided, further, that the Indemnifying Party shall have the right to reject the selection of counsel by the Indemnified Party if the Indemnifying Party reasonably determines that such counsel is inappropriate in light of the nature of the claim or litigation and shall have the right to assume the defense of such claim or litigation if the Indemnifying Party determines that the manner of defense of such claim or litigation is unreasonable.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C6), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C6)
Indemnification; Third Party Claims. (a) The Special Servicer agrees to indemnify the Owner, its successors and assigns, and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer Owner (the “Special Servicer each an "Indemnified Parties”Person") shall be indemnified and held hold each such Indemnified Person harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans from and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person Indemnified Person may sustain arising from or as a result in any way related to the failure of the willful misfeasanceServicer to perform its duties and service the Mortgage Loans in strict compliance with the terms of this Agreement and for breach of any representation, bad faith warranty or negligence in covenant of the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special ServicerServicer contained herein. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a Owner in accordance with Section 11.04 herein of any claim is made by a third party against the Servicer, the Owner or both, with respect to this Agreement or Agreement, the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer and/or any alleged act by Owner. The Owner shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all costs and expenses in connection therewith, (including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and expenses) of defending the Servicer and itself against any such claim other than (i) any loss, liability or expense related costs, judgments and any other costs, liabilities, fees and expenses incurred to the Servicer's failure to perform Servicer's duties in connection strict compliance with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement; and (ii) any loss, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel liability or the incurring of expenses other than any losses expense incurred by reason of any Non-Serviced Mortgage Loan Special the Servicer’s 's willful misfeasance, bad faith or negligence in the performance of its duties under hereunder or by reason of reckless disregard of its obligations and duties hereunder. The Owner shall promptly pay, discharge and satisfy any judgment or decree that may be entered against it in respect of such claim. If in any event, the Servicer incurred any expenses or fees related Non-Serviced Mortgage Loan Pooling and Servicing Agreementto the above, the Servicer shall be entitled to reimbursement of any such expenses or fees from funds in the Custodial Account, unless such claim relates to a matter for which the Servicer is required to indemnify the Owner.
Appears in 1 contract
Samples: Servicing Agreement (Encore Credit Receivables Trust 2005-1)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Transferor, the Owner Trustee, the Issuer, the Grantor Trust, the Depositor, the Grantor Trustee, the Securities Insurer, the Master Servicer and any Affiliate, director, officer, employee, member, manager or agent the Indenture Trustee (each an "Indemnified Party") and hold harmless each of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the willful misfeasance, bad faith Servicer's representations and warranties and covenants contained in this Agreement or negligence in any way relating to the performance failure of the Servicer to perform its duties hereunder or by reason and service the Home Loans in compliance with the terms of negligent disregard of obligations and duties hereunder by the Special Servicer. this Agreement.
(b) The TrusteeTransferor, the Depositor, the Certificate AdministratorGrantor Trustee, the CustodianOwner Trustee, the Trust Advisor or Securities Insurer, the Master Servicer or the Indenture Trustee, as the case may be, shall immediately promptly notify the Special Servicer if a claim is made by a third party with respect to a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the Specially Serviced Mortgage failure of the Servicer to perform its duties and service the Home Loans entitling in compliance with the Trust or terms of this Agreement. The Servicer shall promptly notify the Indenture Trustee, the Grantor Trustee, the Owner Trustee, the Securities Insurer, the Master Servicer and the Depositor of any claim of which it has been notified pursuant to this Section 9.01 by a Person other than the Depositor, and, in any event, shall promptly notify the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, Depositor of its intended course of action with respect to indemnification hereunder, whereupon the Special any claim.
(c) The Servicer shall be entitled to participate in and, upon notice to the Indemnified Party, assume the defense of any such action or claim (in reasonable cooperation with, and with the reasonable cooperation of, the Indemnified Party. The Indemnified Party will have the right to employ its own counsel reasonably satisfactory in any such action in addition to the Trustee, counsel of the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as but the case may befees and expenses of such counsel will be at the expense of such Indemnified Party, unless (i) the employment of counsel by the Indemnified Party at its expense has been authorized in writing by the Servicer, (ii) the Servicer has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Servicer and pay all expenses in connection therewith, including counsel feesone or more Indemnified Parties, and promptly pay, discharge and satisfy any judgment or decree which the Indemnified Parties shall have been advised by counsel that there may be entered against it one or more legal defenses available to them which are different from or additional to those available to the Servicer. The Servicer shall not be liable for any settlement of any such claim or action unless the Servicer shall have consented thereto or be in respect of such claimdefault on its obligations hereunder. Any failure by an Indemnified Party to so notify comply with the Special provisions of this Section 9.01 shall relieve the Servicer shall not affect any rights of liability only if such failure is materially prejudicial to the Trust or position of the Trustee, Servicer and then only to the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense extent of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trusteeprejudice.
(d) Any Non-Serviced Mortgage Loan Special The provisions of this Section 9.01 shall survive the replacement of the Servicer and any Affiliatepursuant to a Servicer Termination Event; provided, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer that no successor servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share liable for (or required to indemnify any party for) any act or omission of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementpredecessor servicer.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Empire Funding Home Loan Owner Trust 1998 3)
Indemnification; Third Party Claims. (a) The Special Subject to Section 6.3, the Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent of hold harmless the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), Owner against any and all claims, losses, penalties, fines, forfeitures, legal fees and Losses that the Owner may sustain in any way related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special failure of such Servicer by to service the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred Mortgage Loans in connection compliance with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; provided, however, the Servicer shall not be liable hereunder (Ba) which constitutes a Servicing Advance that is otherwise reimbursable to the extent such Losses directly result from the Custodian's negligent action, negligent failure to act, bad faith, willful misconduct or breach under this the Custodial Agreement; , dated as of April 1, 2004, among the Owner and the Custodian, (Cb) incurred in connection with respect to any legal action or claim against inaction in accordance with the party seeking indemnification, direction or consent of the Owner or (c) resulting from any breach on the part of that Owner's failure to respond to a request by the Servicer for direction or consent in accordance with Section 3.1(c) hereof. The Servicer shall immediately notify the Owner if a claim is made by a third party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under respect to this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeLoans. The Special Servicer shall assume (with the written notification to the Owner) the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all reasonable expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it the Servicer or them the Owner, subject to limitation pursuant to this Section 6.1, in respect of such claim. The Master Servicer shall promptly make follow any written instructions received from the Collection Account (and, if Owner in connection with any such claim and the Owner shall promptly reimburse the Servicer for all amounts reasonably advanced by it pursuant to the extent that preceding sentence, except when the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the claim (a) is related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer’s obligations to indemnify the Owner pursuant hereto, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special results from the failure of the Servicer agrees to indemnify service the Trust, and each other party to Mortgage Loans in compliance with the terms of this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising (c) results from or as a result of the Servicer's willful misfeasancemisconduct, bad faith or negligence in performing its duties under this Agreement. With respect to any Mortgage Loan, in the performance event that the Owner records or causes to be recorded in the appropriate public recording office of duties hereunder or by reason the jurisdiction in which the related Mortgaged Property is located the related Assignment of negligent disregard Mortgage which designates the Owner as the holder of obligations record of the Mortgage, the Owner shall comply with the provisions of Section 5.2(a) regarding the execution and duties hereunder delivery of release and reconveyance documents, and shall immediately complete, sign and return to the Servicer any additional documents that may be required of the holder of record of the Mortgage and may be reasonably requested by the Special Servicer in order to permit the Servicer to comply with the Servicer’s servicing obligations, and, in its capacity as the holder of record, shall take such other action as may be reasonably requested by the Servicer. The TrusteeIn addition, if, as a result of the recording of the related Assignment of Mortgage, the DepositorOwner, in its capacity as the Certificate Administratorholder of record, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party receives written notice of any action with respect to this Agreement the related Mortgage or the Specially Serviced Mortgage Loans entitling the Trust or the Trusteerelated Mortgaged Property, the Depositor, Owner shall send a copy of such notice to the Certificate Administrator, Servicer immediately in accordance with the Custodian, provisions of Section 9.8 of this Agreement. The Owner agrees that the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory have no liability to the Trustee, Owner for the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any Owner’s failure to so notify comply with the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under provisions set forth in this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligenceparagraph.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Servicing Agreement (GSR 2006-4f)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Trust, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and "control persons," as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the “Special Servicer Indemnified Parties”each an "INDEMNIFIED PARTY") shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement; provided, however, that if the Servicer is not liable pursuant to the provisions of SECTION 9.01(d) hereof for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this SECTION 9.01 shall have no force and effect with respect to such failure.
(b) The Loan Originator, the Depositor, the Indenture Trustee or the Noteholders, as the case may be, shall promptly notify the Servicer if a claim is made by a third party with respect to a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement. The Servicer shall promptly notify the Indenture Trustee and the Depositor of any claim of which it has been notified pursuant to this SECTION 9.01 by a Person other coststhan the Depositor, liabilitiesand, in any event, shall promptly notify the Depositor of its intended course of action with respect to any claim.
(c) The Servicer shall be entitled to participate in and, upon notice to the Indemnified Party, assume the defense of any such action or claim in reasonable cooperation with, and with the reasonable cooperation of, the Indemnified Party. The Indemnified Party will have the right to employ its own counsel in any such action in addition to the counsel of the Servicer, but the fees and expenses of such counsel will be at the expense of such Indemnified Party, unless (i) the employment of counsel by the Indemnified Party at its expense has been authorized in writing by the Servicer, (ii) the Servicer has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Servicer and one or more Indemnified Parties, and the Indemnified Parties shall have been advised by counsel that such person there may sustain arising be one or more legal defenses available to them which are different from or as a result additional to those available to the Servicer. The Servicer shall not be liable for any settlement of any such claim or action unless the Servicer shall have consented thereto or be in default on its obligations hereunder. Any failure by an Indemnified Party to comply with the provisions of this SECTION 9.01 shall relieve the Servicer of liability only if such failure is materially prejudicial to the defense of the Servicer of such claim or action and then only to the extent of such prejudice.
(d) None of the Loan Originator, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originator, the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties of the Servicer, the Depositor or the Loan Originator, as the case may be. The Loan Originator, the Depositor, the Servicer and any of their respective Affiliates, directors, officers, employees, agents may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder.
(e) The Servicer, the Loan Originator, the Depositor, the Indenture Trustee and any of their respective directors, officers, employees, agents, Affiliates and "control persons," as such term is used under the Act and the Securities Exchange Act of 1934, as amended, shall be indemnified by the Trust and held harmless against any loss, liability or expense incurred in connection with any audit, controversy or judicial proceeding relating to a governmental taxing authority or any legal action relating to this Agreement or the Securities, other than any loss, liability or expense related to any specific Loan or Loans (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Agreement) and any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent reckless disregard of obligations and duties hereunder by hereunder. Except as otherwise provided herein, none of the Special Servicer. The TrusteeLoan Originator, the Depositor, the Certificate AdministratorServicer or the Indenture Trustee shall be under any obligation to appear in, prosecute or defend any legal action that is not related to its respective duties under this Agreement and which may involved it in any expenses or liability; provided, however, that, except as otherwise provided herein, any of the Loan Originator, the CustodianDepositor, the Trust Advisor Servicer or the Master Servicer shall immediately notify Indenture Trustee may, with the Special Servicer if a claim is made by a third party prior consent of the Majority Noteholders, in its discretion undertake any such action which it may deem necessary or desirable with respect to this Agreement or and the Specially Serviced Mortgage Loans entitling rights and duties of the Trust or parties hereto and the Trusteeinterests of the Issuer hereunder. In such event, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) legal expenses and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect costs of such claim. Any failure to so notify the Special Servicer shall not affect action and any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer liability resulting therefrom shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct therefor out of the Special Servicer was not culpable or such indemnifying party was found Collection Account, to not have acted with willful misfeasancethe extent that funds are available therein, bad faith or negligenceas provided in SECTION 5.01(c)(1).
(cf) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer Affiliate thereof shall be indemnified by the Trust and held harmless by the Owner Trust against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses liability or expense incurred in connection with any legal action relating third party claims brought against the Servicer and any Affiliate thereto, which are related to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the servicing of the Loans in accordance with this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable including actions taken by the Servicer in accordance with written instructions given to the related Non-Serviced Companion Loans)Servicer by the Noteholders, reasonably requiring the use of counsel or the incurring of expenses other than any losses liability or expense: (i) specifically required to be borne thereby pursuant to the terms hereof or otherwise incidental to the performance of obligations and duties hereunder, including the prosecution of enforcement actions in respect of any specific Loan or Loans (except as any such liability or expense shall be otherwise reimbursable pursuant to this Agreement); (ii) incurred in connection with any breach of a representation, warranty or covenant made therein; (iii) incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence by the Servicer or its Affiliates in the performance of its or their obligations or duties under hereunder; (iv) incurred in connection with any violation by the related Non-Serviced Mortgage Loan Pooling Servicer or its Affiliates of any state or federal securities law; (v) claims for which the Servicer is required to indemnify any Person pursuant to this SECTION 9.01; or (vi) which result from the failure of the Servicer to service and Servicing administer the Loans in strict compliance with the terms of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Franchise Finance Corp of America)
Indemnification; Third Party Claims. The Master Servicer (asolely for the purpose of this Section, the “Indemnifying Party”) The Special Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent to hold each of the Special Servicer Depositor, the Issuer, the Owner Trustee, the Indenture Trustee and, in the case of the Mortgage Loans assigned to Group I, the Enhancer (solely for the purpose of this Section, the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Indemnified Parties may sustain arising from or as a result in any way related to the failure of the willful misfeasanceIndemnifying Party to perform its respective duties in compliance with the terms of this Agreement. In the case of the Mortgage Loans assigned to Group I, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations each Indemnified Party and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer other Indemnified Parties if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the TrusteeAgreement, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or and the Master ServicerServicer shall, as with the case may beconsent of the Enhancer, such consent not to indemnification hereunderbe unreasonably withheld, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including reasonable counsel fees approved by the Enhancer, and promptly pay, discharge and satisfy any judgment or decree which may be entered into against the Indemnified Parties in respect of such claim. In the case of the Mortgage Loans assigned to Group II, each Indemnified Party (other than the Enhancer) and the Master Servicer shall immediately notify the other Indemnified Parties (other than the Enhancer) if a claim is made by a third party with respect to this Agreement, and the Master Servicer shall assume the defense of such claim and pay all expenses in connection therewith, including reasonable counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered into against it or them the Indemnified Parties (other than the Enhancer) in respect of such claim. Any failure to so notify The Indenture Trustee, shall, out of the Special Servicer shall not affect any rights assets of the Trust or the TrusteeEstate attributable to Group I and Group II, the Depositoras applicable, the Certificate Administrator, the Custodian, the Trust Advisor or reimburse the Master Servicer may have in accordance with Section 3.04(c) hereof for all amounts advanced by it pursuant to indemnification under the preceding two sentences except where the claim relates directly to the failure of the Master Servicer to service and administer the Mortgage Loans in compliance with the terms of this Agreement or otherwiseAgreement; provided, unless however, that the Special Master Servicer’s defense indemnity hereunder shall not in any manner be conditioned on the availability of funds for such claim reimbursement. If the Master Servicer is materially prejudiced thereby. Any expenses incurred or indemnification payments made by unable to pay any such amounts owed to the Special Servicer Indenture Trustee, such amounts shall be reimbursed by paid to the party so paid Indenture Trustee out of the Trust Estate pursuant to Section 3.05(a)(x) or at Section 3.05(b) of the direction of which a payment was madeIndenture, if a court of competent jurisdiction makes a final, non-appealable judgment as applicable. Solely to the extent that the conduct Holders of the Special Servicer was not culpable or such indemnifying party was found Certificate fail to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive indemnify the termination of this Agreement and the termination or resignation Owner Trustee as required by Section 7.02 of the Special Servicer, the Certificate Administrator, the Custodian, the Trust AdvisorAgreement, the Master Servicer or shall undertake such indemnification in accordance with the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent terms of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by Section 7.02 of the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Indemnification; Third Party Claims. (a) The Special Servicer and any AffiliateMaster Servicer, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, their respective directors, officers, employees, members, managers managers, employees and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to the Certificates or any Non-Serviced Mortgage Loan (but excluding any such losses allocable to asset of the related Non-Serviced Companion Loans)Trust Fund, reasonably requiring the use of counsel or the incurring of expenses other than any losses loss, liability or expense: (i) specifically required to be borne by such Person pursuant to the terms hereof; (ii) that constitutes a Servicing Advance (and is otherwise specifically reimbursable hereunder); (iii) that was incurred in connection with claims against such party resulting from (A) any breach of a representation, warranty or covenant made herein by reason of any Non-Serviced Mortgage Loan Special Servicer’s such party, (B) willful misfeasance, bad faith or negligence in the performance of its obligations or duties hereunder by such party, or from negligent disregard of such obligations or duties, or (C) any violation by such party of any state or federal securities law; or (iv) imposed by any taxing authority if such loss, liability or expense is not specifically reimbursable pursuant to the terms of this Agreement. Each of the Master Servicer and the Special Servicer shall promptly notify the Trustee if a claim is made by a third party with respect to this Agreement, the Certificates or any asset of the Trust Fund entitling the Master Servicer or the Special Servicer, as the case may be, to indemnification hereunder, whereupon the Trustee, on behalf of the Trust, shall assume the defense of any such claim (with counsel reasonably satisfactory to the Master Servicer or the Special Servicer, as applicable) and pay out of the Collection Account all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy out of the Collection Account any judgment or decree that may be entered against it or them in respect of such claim. Any failure to so notify the Trustee shall not affect any rights the Master Servicer or the Special Servicer may have to indemnification under this Agreement or otherwise, unless the related Non-Serviced Mortgage Loan Pooling Trust's defense of such claim is prejudiced thereby and Servicing Agreement.the Trustee delivers a certification explaining the prejudice. The Trustee or the Master Servicer shall promptly make from the Collection Account any payments certified by the Master Servicer or the Special Servicer to the Trustee as required to be made to the Master Servicer or the Special Servicer, as the case may be, pursuant to this
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc Depositor for Series 1999-Fnv1)
Indemnification; Third Party Claims. (a) The Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless by the Trust, out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any the A/B Notes Mortgage Loan (including REO Loans), if and to the extent that the matter relates to such A/B Mortgage Loan) against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative Trustee or the Master Servicer pursuant to any provision of this Agreement, Agreement in each case and the Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees, members, managers employees and agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeSpecial Servicer) and the Trust shall pay, from amounts on deposit in the Collection Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (andtermination of this Agreement and the termination or resignation of the Special Servicer. Any expenses incurred or indemnification payments made by the Trust shall be reimbursed by the Special Servicer, if and to the extent a court of competent jurisdiction makes a final, non-appealable judgment that the amount due Special Servicer was found to have acted with willful misfeasance, bad faith or negligence. Notwithstanding the foregoing, if such loss, liability or expense relates specifically to a particular Serviced Pari Passu Mortgage Loan (or another Mortgage Loan included in the Trust) or a particular Serviced Companion Mortgage Loan, then such indemnification shall be paid from out of collections on, and other proceeds of, any such Serviced Pari Passu Mortgage Loan, other Mortgage Loan or Serviced Companion Loan or any B NoteMortgage Loan, as set forth aboveapplicable. If such loss, out of the related Serviced Companion Loan Custodial Account liability or the related expense relates to an A/B Whole Mortgage Loan Custodial Account) any payments certified by the Special Servicer but does not relate to the Master Servicerrelated A Note and does not relate primarily to the administration of the Trust or any REMIC formed hereunder or to any determination respecting the amount, payment or avoidance of any tax under the REMIC provisions of the Code or the actual payment of any REMIC tax or expense, then such indemnification shall be paid first out of collections on, and other proceeds of, the Trustee related B Note until such point as such indemnification is paid in full or a Final Recovery Determination has been made with respect to such B Note and only then out of collections on, and other proceeds of, the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24related A Note.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement the Trustee, the Depositor, the Master Servicer, the Paying Agent and any director, officer, member, manager, employee or agent or Controlling Person thereofof the Trustee, the Depositor and the Master Servicer, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Trust or the Trustee, the Depositor, the Paying Agent or the Master Servicer may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by cc1xi reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s 's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Paying Agent or the Trustee. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable of willful misfeasance, bad faith or such negligence in its performance of duties hereunder or of negligent disregard of its duties hereunder or the indemnifying party was is found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement initial Special Servicer and the termination Depositor expressly agree that the only information furnished by or resignation on behalf of the Special Servicer for inclusion in the Preliminary Prospectus Supplement and the Final Prospectus Supplement is the information set forth in the paragraph under the caption "TRANSACTION PARTIES--Special Servicer, " of the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the TrusteePreliminary Prospectus Supplement and Final Prospectus Supplement.
(d) Any Non-Serviced Mortgage Loan Special Servicer Servicer, and any Affiliate, director, officer, employee, member, manager employee or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s 's pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, Agreement and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Mortgage Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s 's willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Hq10)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent (so long as it is an Affiliate of the Special Servicer Originator or the Buyer) shall indemnify the Originator, the Buyer, the Collateral Custodian, the Back-up Servicer, the Agent and each other member of the Lender Group, their respective officers, directors, employees, agents and “control persons,” as such term is used under the Securities Act and under the Exchange Act (the each a “Special Servicer Indemnified PartiesParty”) shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer’s representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Transferred Notes Receivable in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party’s fraud, gross negligence or willful misfeasancemisconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(b) hereof for its failure to perform its duties and service the Transferred Notes Receivable in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such failure; provided, further that (i) no successor Servicer shall be liable for the breaches of representations or warranties or covenants, or actions or omissions, of a predecessor Servicer; and (ii) the Servicer shall not be so required to indemnify a Servicer Indemnified Party or to otherwise be liable to an Servicer Indemnified Party for any losses in respect of the non-performance of the Transferred Notes Receivable, the creditworthiness of the Obligors with respect to the Transferred Notes Receivable, changes in the market value of the Transferred Note Receivable or other similar investment risks associated with the Transferred Note Receivable if the effect of such indemnity would be to provide credit recourse to the Originator for the performance of the Transferred Note Receivable.
(b) None of the Originator or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Collateral Custodian, the Back-up Servicer, the Buyer, the Agent or any member of the Lender Group for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Originator, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misconduct, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Servicer or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerOriginator, as the case may be. The Originator, to indemnification hereunderthe Servicer and any of their respective Affiliates, whereupon the Special Servicer shall assume the defense directors, officers, employees, agents may rely in good faith on any document of any such claim (with counsel reasonably satisfactory to the Trusteekind which, the Depositorprima facie, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Horizon agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement and Collateral Custodian, the termination or resignation of the Special Back-up Servicer, the Certificate AdministratorBuyer, the CustodianAgent, and the Lender Group (each a “Horizon Indemnified Party,” together with the Servicer Indemnified Parties, the Trust Advisor“Indemnified Parties”), from and against any loss, liability, expense, damage, claim or injury arising out of or based on (i) any breach of any representation, warranty or covenant of Horizon in any Loan Document, including, without limitation, by reason of any acts, omissions, or alleged acts or omissions arising out of activities of Horizon in its capacity as the Originator or the Servicer, and (ii) any untrue statement by Horizon of any material fact, including, without limitation, any Officer’s Certificate, statement, report or other document or information prepared by any such Person and furnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, without limitation, such written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Transferred Notes Receivable or any such Person’s business, operations or financial condition, including reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; provided that Horizon shall not indemnify a Horizon Indemnified Party to the extent such loss, liability, expense, damage or injury is due to either such Horizon Indemnified Party’s willful misconduct, bad faith or gross negligence or by reason of such Horizon Indemnified Party’s reckless disregard of its obligations hereunder; provided, further, that Horizon shall not be so required to indemnify a Horizon Indemnified Party or to otherwise be liable to a Horizon Indemnified Party for any losses in respect of the non-performance of the Transferred Notes Receivable, the Master Servicer creditworthiness of the Obligors with respect to the Transferred Notes Receivable, changes in the market value of the Transferred Notes Receivable or other similar investment risks associated with the TrusteeTransferred Notes Receivable if the effect of such indemnity would be to provide credit recourse to Horizon for the performance of the Transferred Notes Receivable. The provisions of this indemnity shall run directly to and be enforceable by a Horizon Indemnified Party subject to the limitations hereof.
(d) Any Non-Serviced Mortgage Loan Special Servicer With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a “Third Party Claim”), such Indemnified Party shall notify the related indemnifying parties (each an “Indemnifying Party”) in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Agent and the Indemnified Party (if other than the Agent) of any Affiliateclaim of which it has been notified and shall promptly notify the Agent and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, directorwhile maintaining control over its own defense, officerthe Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, employeeand the Indemnified Party may defend the same in such manner as it may deem appropriate, member, manager including settling such claim or agent litigation after giving notice to the Indemnifying Party of such Non-Serviced Mortgage Loan Special Servicer terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request; provided, however, that the Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party; provided, further, that the Indemnifying Party shall be indemnified have the right to reject the selection of counsel by the Trust Indemnified Party if the Indemnifying Party reasonably determines that such counsel is inappropriate in light of the nature of the claim or litigation and held harmless against shall have the Trust’s pro rata share right to assume the defense of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to claim or litigation if the related Non-Serviced Companion Loans), reasonably requiring Indemnifying Party determines that the use manner of counsel defense of such claim or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementlitigation is unreasonable.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Horizon Technology Finance Corp)
Indemnification; Third Party Claims. (a1) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Trust, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and “control persons,” as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the each a “Special Servicer Indemnified PartiesParty”) shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer’s representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party’s gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01 (b) hereof for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such failure.
(2) None of the Loan Originator, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originator, the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerLoan Originator, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Loan Originator, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, directors, officers, employees, agents may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder.
(3) The Loan Originator agrees to indemnify and hold harmless the Custodian, Depositor and the Trust Advisor or the Master ServicerNoteholders, as the case may beultimate assignees from the Depositor (each an “Originator Indemnified Party,” together with the Servicer Indemnified Parties, the “Indemnified Parties”), from and against any loss, liability, expense, damage, claim or injury arising out of or based on (i) any breach of any representation, warranty or covenant of the Loan Originator, the Servicer or their Affiliates, in any Basic Document, including, without limitation, the origination or prior servicing of the Loans by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Loan Originator, the Servicer or their Affiliates, and pay all expenses (ii) any untrue statement by the Loan Originator, the Servicer or its Affiliates of any material fact or any such Person’s failure to state a material fact necessary to make such statements not misleading with respect to any such Person’s statements contained in any Basic Document, including, without limitation, any Officer’s Certificate, statement, report or other document or information prepared by any such Person and furnished or to be furnished by it pursuant to or in connection therewithwith the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, without limitation, such written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Loans or any such Person’s business, operations or financial condition, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal reasonable attorneys’ fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage actual or threatened action, proceeding or claim; provided that the Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Originator shall not indemnify an Originator Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicerinjury is due to either an Originator Indemnified Party’s willful misfeasance, bad faith or negligence or by reason of an Originator Indemnified Party’s reckless disregard of its obligations hereunder; provided, further, that the Loan Originator shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable to an Originator Indemnified Party for any losses in respect of the performance of its duties the Loans, the creditworthiness of the Borrowers under the Loans, changes in the market value of the Loans or other similar investment risks associated with the Loans arising from a breach of any representation or warranty set forth in Exhibit E hereto, a remedy for the breach of which is provided in Section 3.06 hereof. The provisions of this indemnity shall run directly to and be enforceable by an Originator Indemnified Party subject to the limitations hereof.
(4) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a “Third Party Claim”), such Indemnified Party shall notify the related Non-Serviced Mortgage Loan Pooling indemnifying parties (each an “Indemnifying Party”) in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party’s receipt thereof, copies of all notices and Servicing Agreementdocuments (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any claim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(5) If a Third Party Claim is made against an Indemnified Party, while maintaining control over its own defense, the Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, and the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of such terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request; provided, however, that the Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party; provided, further, that the Indemnifying Party shall have the right to reject the selection of counsel by the Indemnified Party if the Indemnifying Party reasonably determines that such counsel is inappropriate in light of the nature of the claim or litigation and shall have the right to assume the defense of such claim or litigation if the Indemnifying Party determines that the manner of defense of such claim or litigation is unreasonable.
Appears in 1 contract
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent Each of the Special Servicer Servicer, the Depositor, and the Seller (solely for the “Special Servicer Indemnified purpose of this Section 5.21, the "Indemnifying Parties”") shall be indemnified agrees to indemnify and held harmless out to hold each of the proceeds of Servicer, the Mortgage LoansDepositor, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or Seller, the Master Servicer pursuant to any provision Certificate Insurer and each Certificateholder (solely for the purpose of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds ofSection 5.21, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1"Indemnified Parties") if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may the Indemnified Parties may, respectively, sustain arising from in any way related to the failure of any one or as a result more of the willful misfeasance, bad faith or negligence Indemnifying Parties to perform its respective duties in compliance with the performance terms of duties hereunder or by reason of negligent disregard of obligations this Agreement. Each Indemnified Party and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer other Indemnified Parties if a claim is made by a third party with respect to this Agreement or Agreement, and the Specially Serviced Mortgage Loans entitling Servicer shall with the Trust or the Trustee, the Depositor, consent of the Certificate AdministratorInsurer, the Custodiansuch consent not to be unreasonably withheld, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including reasonable counsel feesfees approved by the Certificate Insurer, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Indemnified Parties in respect of such claim. Any The Trustee shall, out of the assets of the Trust Fund, reimburse the Servicer in accordance with Section 5.14 hereof for all amounts advanced by it pursuant to the preceding sentence except when the claim relates directly to the failure of the Servicer to so notify service and administer the Special Servicer Mortgages in compliance with the terms of this Agreement; provided, that the Servicer's indemnity hereunder shall not affect be in any rights manner conditioned on the Trust availability of funds for such reimbursement. 100
(b) The Trustee, at the written request of the Servicer (which the Trustee may conclusively rely on) may, if necessary, reimburse the Servicer from amounts otherwise distributable on the Class R Certificates for all amounts advanced by the Servicer pursuant to Section 4.4(a)(ii) of the Purchase and Sale Agreement, except when the claim relates directly to the failure of the Servicer, if it is, or is an Affiliate of, the Seller, to perform its obligations to service and administer the Mortgages in compliance with the terms of the Purchase and Sale Agreement, or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct failure of the Special Servicer was not culpable or such indemnifying party was found Seller to not have acted perform its duties in compliance with willful misfeasance, bad faith or negligencethe terms of this Agreement.
(c) The indemnification provided in Sections 9.24(a) and 9.24(bTrustee, at the written request of the Servicer (which the Trustee may conclusively rely on) shall survive reimburse the termination Seller from amounts otherwise distributable on the Class R Certificates for all amounts advanced by the Seller pursuant to the second sentence of this Agreement and the termination or resignation Section 4.4(a)(ii) of the Special Servicer, Purchase and Sale Agreement except when the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable relevant claim relates directly to the related Non-Serviced Companion Loans), reasonably requiring failure of the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Seller to perform its duties under in compliance with the related Non-Serviced Mortgage Loan Pooling terms of the Purchase and Servicing Sale Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Indemnification; Third Party Claims. (a) The Each Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of the each such Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified by the Trust, and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action or claim relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B NotesLoan, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses Agreement, and (ii) any action properly taken by the such Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the such Special Servicer by the Trustee, the Controlling Class Representative Trustee or the applicable Master Servicer pursuant to any provision of this Agreement, and the such Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees, members, managers and employees or agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the such Special Servicer of any information included by the such Special Servicer in the report required to be provided by the such Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The applicable Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trusteesuch Special Servicer) and the Trust shall pay, from amounts on deposit in the Collection applicable Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (andtermination of this Agreement and the termination or resignation of such Special Servicer. Any expenses incurred or indemnification payments made by the Trust shall be reimbursed by such Special Servicer, if and a court of competent jurisdiction makes a final, non-appealable judgment that such Special Servicer was found to have acted with willful misfeasance, bad faith or negligence. Notwithstanding the extent that the amount due foregoing, if such loss, liability or expense relates specifically to a Serviced Companion Loan, then such indemnification shall be paid from out of collections on, and other proceeds of, any such Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24Loan.
(b) The Each Special Servicer agrees to indemnify the Trust, and each other party to this Agreement the Trustee, the Depositor, the applicable Master Servicer, the Paying Agent and any directorpartner, officerrepresentative, Affiliate, member, manager, employee or director, officer, employee, agent or Controlling Person thereofof the Trustee, the Depositor and the applicable Master Servicer, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Trust or the Trustee, the Depositor, the Paying Agent or the applicable Master Servicer may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of such Special Servicer's duties hereunder or by reason of negligent disregard of such Special Servicer's obligations and duties hereunder by the such Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer shall immediately notify the such Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be, to indemnification hereunder, whereupon the such Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the such Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s 's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of such Special Servicer, the Paying Agent or the Trustee. Any expenses incurred or indemnification payments made by the such Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the such Special Servicer was not culpable of willful misfeasance, bad faith or such indemnifying negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party was is found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement Each initial applicable Special Servicer and the termination Depositor expressly agree that the only information furnished by or resignation on behalf of such Special Servicer for inclusion in the Preliminary Prospectus Supplement and the Final Prospectus Supplement is the information set forth in the paragraphs under the caption (i) "TRANSACTION PARTIES--The Special Servicers--The General Special Servicer," with respect to the General Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
and (dii) Any Non-Serviced Mortgage Loan "TRANSACTION PARTIES--The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection Servicers--National Consumer Cooperative Bank," with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable respect to the related NonCo-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan op Special Servicer’s willful misfeasance, bad faith or negligence in of the performance of its duties under the related Non-Serviced Mortgage Loan Pooling Preliminary Prospectus Supplement and Servicing AgreementFinal Prospectus Supplement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Iq11)
Indemnification; Third Party Claims. (a) The Special Servicer 7.1 Seller shall defend, indemnify and any Affiliatehold harmless all Purchaser Entities, directortheir successors and assigns, officerand the respective directors, employeeofficers, membermembers, manager or agent employees, and agents of the Special Servicer all Purchaser Entities and their successors and assign (the “Special Servicer Purchaser Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), from and against any and all claims, losses, liabilities, obligations, damages, expenses, demands, suits, judgments, penalties, finesand costs of any kind whatsoever, forfeitures, legal including reasonable attorneys’ fees and related costsexpenses, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating arising from or attributable to (i) Seller’s breach of any representation, warranty or agreement of Seller set forth in this Agreement, or in any agreement or instrument executed and delivered by the Seller in connection with this Agreement; (ii) any breach by any Seller Entity of any representation, warranty or agreement of such Seller Entity under this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates joinder of such Seller Entity hereto or any exercise of any right under agreement or instrument executed and delivered by such Seller Entity in connection with this Agreement reasonably requiring the use of counsel or the incurring of expenses and Agreement; (iiiii) any action properly taken by the Special Servicer in accordance with this Agreement based actual or alleged matter, event, transaction, circumstance or happening on an instruction delivered in writing or prior to the Special Servicer Closing Date or as a result of the consummation of the transactions contemplated by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, including but not limited to claims in respect of periods after the Closing Date arising from actual or alleged matters on or prior to the Closing Date but not including obligations under License Agreements to the extent expressly assumed by the Purchaser pursuant to this Agreement; (iv) any assertion or claim by any Person that Purchaser’s use, application, implementation, licensing or other exploitation of any Seller Intellectual Property or any part thereof misappropriates or infringes in whole or in part any right of such Person; (v) any actual or alleged event, occurrence, transaction, circumstance, action, happening, license, agreement, transaction, dealings, business, arrangement or other matter on or prior to the Closing Date with or pertaining to FreshTec, LLC, a California limited liability company (including but not limited to claims in respect of periods after the Closing Date arising from actual or alleged matters on or prior to the Closing Date); and (vi) any actual or alleged event, occurrence, transaction, circumstance, action, happening, license, agreement, transaction, dealings, business, arrangement or other matter on or prior to the Special Servicer Closing Date with or pertaining to Innovative Systems Corporation or any other Person organized or existing under Canadian federal or provincial law or any member, stockholder, equity holder, creditor, lender, supplier, contractor, partner, joint venture, officer, director, employee, investor or manager of any such Person (including but not limited to claims in respect of periods after the Closing Date arising from actual or alleged matters on or prior to the Closing Date).
7.2 Purchaser shall defend, indemnify and each of its hold harmless Seller and Seller’s Affiliates, their agents and successors, and their respective directors, officers, members, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall payagents, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penaltiesdamages, finesexpenses, forfeituresdemands, legal fees and related costssuits, judgments, penalties, and costs of any other costskind whatsoever, liabilities, including reasonable attorneys’ fees and expenses that such person may sustain expenses, arising from or as a result attributable to Purchaser’s breach of the willful misfeasanceany representation, bad faith warranty or negligence covenant of Purchaser set forth in the performance this Agreement.
7.3 If either Party becomes aware of duties hereunder any claim or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made assertion by a third party with respect that may give rise to this Agreement a claim for indemnification under Section 7.1 or 7.2 (“third party claim”), such Party shall promptly notify the Specially Serviced Mortgage Loans entitling other Party, provided, however, that no delay on the Trust or the Trusteepart of any Party seeking indemnification (i.e., the Depositor, indemnified Party) in providing such notice shall relieve the Certificate Administrator, indemnifying Party from any obligation hereunder unless (and then solely to the Custodian, extent) the Trust Advisor or indemnifying Party is thereby actually prejudiced.
7.4 The indemnifying Party shall not have the Master Servicerright, as part of any settlement to adversely affect any of the case may beindemnified Party’s rights under this Agreement, to indemnification hereunder, whereupon limit in any way the Special Servicer indemnified Party’s course of doing business (including in each case where the indemnified Party is the Purchaser the right of the Purchaser to use and exploit any of the Seller Intellectual Property or to sell Seller Products in any way deemed desirable by the Purchaser) or to bind the indemnified Party in any way without the express written consent of the indemnified Party. An indemnified Party shall assume cooperate at the indemnifying Party’s expense in the defense of any such claim (with counsel reasonably satisfactory to a third party claim.
7.5 All rights of the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification parties under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) Section 7 shall survive the expiration of all Applicable Terms or permitted termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Intellectual Property Purchase Agreement (Firma Holdings Corp.)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent Each of the Special Servicer Servicer, the Depositor, and the Seller (solely for the “Special Servicer Indemnified purpose of this Section 5.22, the "Indemnifying Parties”") shall be indemnified agrees to indemnify and held harmless out to hold each of the proceeds of Servicer, the Mortgage LoansDepositor, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or Seller, the Master Servicer pursuant to any provision Certificate Insurer and each Certificateholder (solely for the purpose of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds ofSection 5.22, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1"Indemnified Parties") if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may the Indemnified Parties may, respectively, sustain arising from in any way related to the failure of any one or as a result more of the willful misfeasance, bad faith or negligence Indemnifying Parties to perform its respective duties in compliance with the performance terms of duties hereunder or by reason of negligent disregard of obligations this Agreement. Each Indemnified Party and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer other Indemnified Parties if a claim is made by a third party with respect to this Agreement or Agreement, and the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including reasonable counsel feesfees approved by the Certificate Insurer, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Indemnified Parties in respect of such claim. Any The Trustee shall, out of the assets of the Trust Fund, reimburse the Servicer in accordance with Section 5.14 hereof for all amounts advanced by it pursuant to the preceding sentence except when the claim relates directly to the failure of the Servicer to so notify service and administer the Special Servicer Mortgages in compliance with the terms of this Agreement; provided, that the Servicer's indemnity hereunder shall not affect be in any rights manner conditioned on the Trust availability of funds for such reimbursement.
(b) The Trustee, at the written request of the Servicer (which the Trustee may conclusively rely on) may, if necessary, reimburse the Servicer from amounts otherwise distributable on the Class R Certificates for all amounts advanced by the Servicer pursuant to Section 4.4(a)(ii) of the Purchase and Sale Agreement, except when the claim relates directly to the failure of the Servicer, if it is, or is an Affiliate of, the Seller, to perform its obligations to service and administer the Mortgages in compliance with the terms of the Purchase and Sale Agreement, or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct failure of the Special Servicer was not culpable or such indemnifying party was found Seller to not have acted perform its duties in compliance with willful misfeasance, bad faith or negligencethe terms of this Agreement.
(c) The indemnification provided in Sections 9.24(a) and 9.24(bTrustee, at the written request of the Servicer (which the Trustee may conclusively rely on) shall survive reimburse the termination Seller from amounts otherwise distributable on the Class R Certificates for all amounts advanced by the Seller pursuant to the second sentence of this Agreement and the termination or resignation Section 4.4(a)(ii) of the Special Servicer, Purchase and Sale Agreement except when the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable relevant claim relates directly to the related Non-Serviced Companion Loans), reasonably requiring failure of the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Seller to perform its duties under in compliance with the related Non-Serviced Mortgage Loan Pooling terms of the Purchase and Servicing Sale Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Indemnification; Third Party Claims. is hereby amended by deleting Subsection (a) and replacing it with the following:
(a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of shall indemnify the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the TrusteeSeller, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master ServicerFund, the Trustee and the Certificate Administrator as required to be made to the Special Master Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold each of 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, liabilities, fees and expenses that any of such person parties may sustain arising from or as a result in any way related to the failure of the willful misfeasance, bad faith or negligence Servicer to perform its duties and service the Mortgage Loans in strict compliance with the performance terms of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicerthis Agreement. The TrusteeServicer immediately shall notify the Seller, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify and the Special Servicer Trustee or any other relevant party if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling Loans, assume (with the Trust prior written consent of the indemnified party, which consent shall not be unreasonably withheld or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume delayed) the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them any of such parties in respect of such claim. Any failure to so notify the Special The Servicer shall not affect follow any rights written instructions received from the Trustee in connection with such claim. The Servicer shall provide the Trustee with a written report of all expenses and advances incurred by the Servicer pursuant to this Section 9.01, and the Trustee from the assets of the Trust or Fund promptly shall reimburse the Trustee, Servicer for all amounts advanced by it pursuant to the Depositor, preceding sentence except when the Certificate Administrator, claim is in any way relates to the Custodian, failure of the Trust Advisor or Servicer to service and administer the Master Servicer may have to indemnification under Mortgage Loans in strict compliance with the terms of this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasancegross negligence, bad faith or negligencewillful misconduct of this Servicer.
Section 10.01 (Events of Default) is hereby amended by:
(a) changing any reference to "Purchaser" to "Master Servicer"
(b) changing the reference to "five days" to "two Business Days" in subclause (i);
(c) The indemnification provided adding the words "within the applicable cure period" after the word "remedied" in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation second line of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.second paragraph; and
(d) Any Non-Serviced Mortgage Loan Special amending subclause (vii) as follows: "the Company at any time is neither a Xxxxxx Xxx or Xxxxxxx Mac approved servicer, and the Master Servicer has not terminated the rights and any Affiliate, director, officer, employee, member, manager obligations of the Company under this Agreement and replaced the Company with a Xxxxxx Mae or agent Xxxxxxx Mac approved servicer within 30 days of the absence of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementapproval; or".
Appears in 1 contract
Samples: Servicing Agreement (Structured Asset Sec Corp Mort Pas THR Cert Ser 2002 5a)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Trust, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and "control persons," as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the “Special each a "Servicer Indemnified Parties”Party") shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party's gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(b) hereof for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such failure. In addition to the foregoing, the Servicer shall indemnify the Note Agent and hold it harmless against any amounts the Notes Agent is obligated to pay pursuant to any Blocked Account Agreement to the financial institution at which either of the Trust Accounts is maintained to the extent such amounts are incurred or relate to a period following the delivery of a Termination Notice (as defined under such Blocked Account Agreement) under such Blocked Account Agreement.
(b) None of the Loan Originator, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originator, the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerLoan Originator, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Loan Originator, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicerofficers, as the case employees, agents may be) rely in good faith on any document of any kind which, prima facie, is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Loan Originator agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement Depositor and the termination Noteholders, as the ultimate assignees from the Depositor (each an "Originator Indemnified Party," together with the Servicer Indemnified Parties, the "Indemnified Parties"), from and against any loss, liability, expense, damage, claim or resignation injury arising out of or based on
(i) any breach of any representation, warranty or covenant of the Special ServicerLoan Originator, the Certificate AdministratorServicer or their Affiliates, in any Basic Document, including, without limitation, the Custodianorigination or prior servicing of the Loans by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Loan Originator, the Trust AdvisorServicer or their Affiliates, and (ii) any untrue statement by the Loan Originator, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share its Affiliates of any material fact or any such Person's failure to state a material fact necessary to make such statements not misleading with respect to any such Person's statements contained in any Basic Document, including, without limitation, any Officer's Certificate, statement, report or other document or information prepared by any such Person and all claimsfurnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, losseswithout limitation, penaltiessuch written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Loans or any such Person's business, finesoperations or financial condition, forfeitures, legal including reasonable attorneys' fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage actual or threatened action, proceeding or claim; provided that the Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Originator shall not indemnify an Originator Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s injury is due to either an Originator Indemnified Party's willful misfeasance, bad faith or negligence or by reason of an Originator Indemnified Party's reckless disregard of its obligations hereunder; provided, further, that the Loan Originator shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable to an Originator Indemnified Party for any losses in respect of the performance of its duties the Loans, the creditworthiness of the Borrowers under the Loans, changes in the market value of the Loans or other similar investment risks associated with the Loans arising from a breach of any representation or warranty set forth in Exhibit E hereto, a remedy for the breach of which is provided in Section 3.06 hereof. The provisions of this indemnity shall run directly to and be enforceable by an Originator Indemnified Party subject to the limitations hereof.
(d) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a "Third Party Claim"), such Indemnified Party shall notify the related Non-Serviced Mortgage Loan Pooling indemnifying parties (each an "Indemnifying Party") in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party's receipt thereof, copies of all notices and Servicing Agreementdocuments (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any claim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, while maintaining control over its own defense, the Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, and the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of such terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request; provided, however, that the 66 Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party.
Appears in 1 contract
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Transferor, the Owner Trustee, the Issuer, the Depositor and any Affiliate, director, officer, employee, member, manager or agent the Indenture Trustee (each an "Indemnified Party") and hold harmless each of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Home Loans in compliance with the terms of this Agreement; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 9.01(d) hereof for its failure to perform its duties and service the Home Loans in compliance with the terms of this Agreement, then the provisions of this Section 9.01 shall have no force and effect with respect to such failure.
(b) The Transferor, the Depositor, the Owner Trustee or the Indenture Trustee, as the case may be, shall promptly notify the Servicer if a claim is made by a third party with respect to a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Home Loans in compliance with the terms of this Agreement. The Servicer shall promptly notify the Indenture Trustee, the Owner Trustee and the Depositor of any claim of which it has been notified pursuant to this Section 9.01 by a Person other coststhan the Depositor, liabilitiesand, in any event, shall promptly notify the Depositor of its intended course of action with respect to any claim.
(c) The Servicer shall be entitled to participate in and, upon notice to the Indemnified Party, assume the defense of any such action or claim in reasonable cooperation with, and with the reasonable cooperation of, the Indemnified Party. The Indemnified Party will have the right to employ its own counsel in any such action in addition to the counsel of the Servicer, but the fees and expenses of such counsel will be at the expense of such Indemnified Party, unless (i) the employment of counsel by the Indemnified Party at its expense has been authorized in writing by the Servicer, (ii) the Servicer has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Servicer and one or more Indemnified Parties, and the Indemnified Parties shall have been advised by counsel that there may be one or more legal defenses available to them which are different from or additional to those available to the Servicer. The Servicer shall not be liable for any settlement of any such claim or action unless the Servicer shall have consented thereto or be in default on its obligations hereunder. Any failure by an Indemnified Party to comply with the provisions of this Section 9.01 shall relieve the Servicer of liability only if such failure is materially prejudicial to the position of the Servicer and then only to the extent of such prejudice.
(d) None of the Transferor, the Depositor, the Servicer or any of the directors, officers, employees or agents of the Transferor, the Depositor or the Servicer, or members or Affiliates of the Depositor shall be under any liability to the Issuer or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Transferor, the Depositor, the Servicer or any such person may sustain arising from against the remedies provided herein for the breach of any warranties, representations or as a result covenants made herein, or against any specific liability imposed on the Transferor, the Depositor or the Servicer herein, or against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of the duties of the Servicer, the Depositor or the Transferor, as the case may be, or by reason of reckless disregard of the obligations and duties of the Servicer, the Depositor or the Transferor, as the case may be, hereunder. The Transferor, the Depositor, the Servicer and any director, officer, employee or agent of the Transferor, the Depositor or the Servicer, or any member or Affiliate of the Depositor may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder.
(e) The Servicer, the Transferor and the Depositor and any director, officer, employee or agent of the Servicer, the Transferor or the Depositor shall be indemnified by the Issuer and held harmless against any loss, liability or expense incurred in connection with any audit, controversy or judicial proceeding relating to a governmental taxing authority or any legal action relating to this Agreement or the Securities, other than any loss, liability or expense related to any specific Home Loan or Home Loans (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Agreement) and any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent reckless disregard of obligations and duties hereunder by hereunder. Except as otherwise provided herein, none of the Special Servicer. The Transferor, the Depositor or the Servicer shall be under any obligation to appear in, prosecute or defend any legal action that is not related to its respective duties under this Agreement; provided, however, that, except as otherwise provided herein, any of the Transferor, the Depositor or the Servicer may, with the prior consent of the Indenture Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor in its discretion undertake any such action which it may deem necessary or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party desirable with respect to this Agreement or and the Specially Serviced Mortgage Loans entitling rights and duties of the Trust or parties hereto and the Trusteeinterests of the Securityholders hereunder. In such event, the Depositorlegal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust, and the Transferor, the Certificate Administrator, Depositor and the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be entitled to be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct therefor out of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligenceCollection Account.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Life Financial Home Loan Owner Trust 1997-3)
Indemnification; Third Party Claims. (a) The Special Servicer agrees to indemnify and any Affiliatehold harmless the Purchaser, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employeesagents and employees (each, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ feesa “Purchaser Indemnified Party”) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Purchaser may sustain arising from or as a result in any way related to the failure of the willful misfeasanceServicer to service the Mortgage Loans in compliance with the terms of this Agreement.
(b) The Purchaser shall indemnify and hold the Servicer, bad faith its directors, officers, agents and employees (each, a “Servicer Indemnified Party”) harmless from and shall reimburse the Servicer for any losses suffered or negligence sustained in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder any way by the Special Servicer, irrespective of how or when arising (including in connection with any judgment, award, or settlement), in connection with or relating to (i) any limitation on the liability of the Servicer pursuant to Subsection 11.03 hereof or (ii) the Servicer’s compliance with the instructions of the Purchaser. In no event, however, shall the Servicer be relieved of its obligations hereunder to perform in accordance with Customary Servicing Procedures.
(c) The Trustee, Purchaser or Servicer required to indemnify under this Section 11.01 (the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer “Indemnitor”) shall immediately (i) notify the Special Purchaser, Indemnified Party or Servicer Indemnified Party, as applicable, if a claim is made by a third party with respect to this Agreement or the Specially Serviced Agreement, any Mortgage Loans entitling the Trust or the TrusteeLoan and/or any REO Property, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall (ii) assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel attorneys’ fees, and (iii) promptly pay, discharge and satisfy any judgment judgment, award, or decree which that may be entered against it it, an Indemnified Party or them an Servicer Indemnified Party in respect of such claim. Any failure Nothing contained herein shall prohibit the Purchaser, Indemnified Party or Servicer Indemnified Party, at its expense, from retaining its own counsel to so notify the Special Servicer shall not affect assist in any rights the Trust such proceedings or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of observe such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer proceedings; provided that neither party shall be obligated to pay or comply with any settlement to which it has not consented. All amounts required to be paid or reimbursed by the party so Indemnitor hereunder shall be paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) reimbursed as and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified when incurred by the Trust and held harmless against the Trust’s pro rata share of any and all claimsPurchaser, lossesIndemnified Party or Servicer Indemnified Party upon demand therefor by such Purchaser, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel Indemnified Party or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing AgreementServicer Indemnified Party.
Appears in 1 contract
Samples: Servicing Agreement (Thornburg Mortgage Securities Trust 2005-4)
Indemnification; Third Party Claims. The Master Servicer (asolely for the purpose of this Section, the "Indemnifying Party") The Special Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent to hold each of the Special Servicer (Depositor, the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of Issuer, the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Owner Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this AgreementIndenture Trustee and, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections onassigned to Group I, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to Enhancer (solely for the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) purpose of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds ofSection, the Mortgage Loans as a whole; and
(2"Indemnified Parties") if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Indemnified Parties may sustain arising from or as a result in any way related to the failure of the willful misfeasanceIndemnifying Party to perform its respective duties in compliance with the terms of this Agreement. In the case of the Mortgage Loans assigned to Group I, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations each Indemnified Party and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer other Indemnified Parties if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the TrusteeAgreement, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or and the Master ServicerServicer shall, as with the case may beconsent of the Enhancer, such consent not to indemnification hereunderbe unreasonably withheld, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including reasonable counsel fees approved by the Enhancer, and promptly pay, discharge and satisfy any judgment or decree which may be entered into against the Indemnified Parties in respect of such claim. In the case of the Mortgage Loans assigned to Group II, each Indemnified Party (other than the Enhancer) and the Master Servicer shall immediately notify the other Indemnified Parties (other than the Enhancer) if a claim is made by a third party with respect to this Agreement, and the Master Servicer shall assume the defense of such claim and pay all expenses in connection therewith, including reasonable counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered into against it or them the Indemnified Parties (other than the Enhancer) in respect of such claim. Any failure to so notify The Indenture Trustee, shall, out of the Special Servicer shall not affect any rights assets of the Trust or the TrusteeEstate attributable to Group I and Group II, the Depositoras applicable, the Certificate Administrator, the Custodian, the Trust Advisor or reimburse the Master Servicer may have in accordance with Section 3.04(c) hereof for all amounts advanced by it pursuant to indemnification under the preceding two sentences except where the claim relates directly to the failure of the Master Servicer to service and administer the Mortgage Loans in compliance with the terms of this Agreement or otherwiseAgreement; provided, unless however, that the Special Master Servicer’s defense 's indemnity hereunder shall not in any manner be conditioned on the availability of funds for such claim reimbursement. If the Master Servicer is materially prejudiced thereby. Any expenses incurred or indemnification payments made by unable to pay any such amounts owed to the Special Servicer Indenture Trustee, such amounts shall be reimbursed by paid to the party so paid Indenture Trustee out of the Trust Estate pursuant to Section 3.05(a)(x) or at Section 3.05(b) of the direction of which a payment was madeIndenture, if a court of competent jurisdiction makes a final, non-appealable judgment as applicable. Solely to the extent that the conduct Holders of the Special Servicer was not culpable or such indemnifying party was found Certificate fail to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive indemnify the termination of this Agreement and the termination or resignation Owner Trustee as required by Section 7.02 of the Special Servicer, the Certificate Administrator, the Custodian, the Trust AdvisorAgreement, the Master Servicer or shall undertake such indemnification in accordance with the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent terms of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by Section 7.02 of the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Trust, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and "control persons," as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the “Special each a "Servicer Indemnified Parties”Party") shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party's gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(b) hereof for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such failure.
(b) None of the Loan Originator, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originator, the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerLoan Originator, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Loan Originator, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicerofficers, as the case employees, agents may be) rely in good faith on any document of any kind which, prima facie, is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Loan Originator agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement Depositor and the termination Noteholders, as the ultimate assignees from the Depositor (each an "Originator Indemnified Party," together with the Servicer Indemnified Parties, the "Indemnified Parties"), from and against any loss, liability, expense, damage, claim or resignation injury arising out of or based on (i) any breach of any representation, warranty or covenant of the Special ServicerLoan Originator, the Certificate AdministratorServicer or their Affiliates, in any Basic Document, including, without limitation, the Custodianorigination or prior servicing of the Loans by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Loan Originator, the Trust AdvisorServicer or their Affiliates, and (ii) any untrue statement by the Loan Originator, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share its Affiliates of any material fact or any such Person's failure to state a material fact necessary to make such statements not misleading with respect to any such Person's statements contained in any Basic Document, including, without limitation, any Officer's Certificate, statement, report or other document or information prepared by any such Person and all claimsfurnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, losseswithout limitation, penaltiessuch written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Loans or any such Person's business, finesoperations or financial condition, forfeitures, legal including reasonable attorneys' fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage actual or threatened action, proceeding or claim; provided that the Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Originator shall not indemnify an Originator Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s injury is due to either an Originator Indemnified Party's willful misfeasance, bad faith or negligence or by reason of an Originator Indemnified Party's reckless disregard of its obligations hereunder; provided, further, that the Loan Originator shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable to an Originator Indemnified Party for any losses in respect of the performance of its duties the Loans, the creditworthiness of the Borrowers under the Loans, changes in the market value of the Loans or other similar investment risks associated with the Loans arising from a breach of any representation or warranty set forth in Exhibit E hereto, a remedy for the breach of which is provided in Section 3.06 hereof. The provisions of this indemnity shall run directly to and be enforceable by an Originator Indemnified Party subject to the limitations hereof.
(d) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a "Third Party Claim"), such Indemnified Party shall notify the related Non-Serviced Mortgage Loan Pooling indemnifying parties (each an "Indemnifying Party") in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party's receipt thereof, copies of all notices and Servicing Agreementdocuments (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any claim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, while maintaining control over its own defense, the Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, and the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of such terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request ; provided, however, that the Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party; provided, further, that the Indemnifying Party shall have the right to reject the selection of counsel by the Indemnified Party if the Indemnifying Party reasonably determines that such counsel is inappropriate in light of the nature of the claim or litigation and shall have the right to assume the defense of such claim or litigation if the Indemnifying Party determines that the manner of defense of such claim or litigation is unreasonable.
Appears in 1 contract
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Trust, the Depositor, the Facility Administrator and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and "control persons," as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the “Special each a "Servicer Indemnified Parties”Party") shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party's gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 7.01(b) for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this Section 7.01 shall have no force and effect with respect to such failure.
(b) None of the Loan Originator, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Company, the Facility Administrator or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originator, the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerLoan Originator, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Loan Originator, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicerofficers, as the case employees, agents may be) rely in good faith on any document of any kind which, prima facie, is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Loan Originator agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement Depositor and the termination Noteholders, as the ultimate assignees from the Depositor (each an "Originator Indemnified Party," together with the Servicer Indemnified Parties, the "Indemnified Parties"), from and against any loss, liability, expense, damage, claim or resignation injury arising out of or based on (i) any breach of any representation, warranty or covenant of the Special ServicerLoan Originator, the Certificate AdministratorServicer or their Affiliates, in any Basic Document, including, without limitation, the Custodianorigination or prior servicing of the Loans by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Loan Originator, the Trust AdvisorServicer or their Affiliates, and (ii) any untrue statement by the Loan Originator, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share its Affiliates of any material fact or any such Person's failure to state a material fact necessary to make such statements not misleading with respect to any such Person's statements contained in any Basic Document, including, without limitation, any Officer's Certificate, statement, report or other document or information prepared by any such Person and all claimsfurnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction, lossesincluding, penaltieswithout limitation, finessuch written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Loans or any such Person's business, forfeituresoperations or financial condition, legal including reasonable attorneys' fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage actual or threatened action, proceeding or claim; provided that the Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Originator shall not indemnify an Originator Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s injury is due to either an Originator Indemnified Party's willful misfeasance, bad faith or negligence or by reason of an Originator Indemnified Party's reckless disregard of its obligations hereunder; provided, further, that the Loan Originator shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable to an Originator Indemnified Party for any losses in respect of the performance of its duties the Loans, the creditworthiness of the Borrowers under the related Non-Serviced Mortgage Loan Pooling Loans, changes in the market value of the Loans or other similar investment risks associated with the Loans arising from a breach of any representation or warranty set forth in Exhibit E, a remedy for the breach of which is provided in Section 3.06. The provisions of this indemnity shall run directly to and Servicing Agreementbe enforceable by an Originator Indemnified Party subject to the limitations hereof.
Appears in 1 contract
Indemnification; Third Party Claims. (a) The Special Servicer and any AffiliateMaster Servicer, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, their respective directors, officers, employees, members, managers employees and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to the Certificates or any Non-Serviced Mortgage Loan (but excluding any such losses allocable to asset of the related Non-Serviced Companion Loans)Trust Fund, reasonably requiring the use of counsel or the incurring of expenses other than any losses loss, liability or expense: (i) specifically required to be borne by such Person pursuant to the terms hereof; (ii) that constitutes a Servicing Advance (and is otherwise specifically reimbursable hereunder); (iii) that was incurred in connection with claims against such party resulting from (A) any breach of a representation, warranty or covenant made herein by reason of any Non-Serviced Mortgage Loan Special Servicer’s such party, (B) willful misfeasance, bad faith or negligence in the performance of its obligations or duties hereunder by such party, or from reckless disregard of such obligations or duties, or (C) any violation by such party of any state or federal securities law; or (iv) imposed by any taxing authority if such loss, liability or expense is not specifically reimbursable pursuant to the terms of this Agreement. Each of the Master Servicer and the Special Servicer shall promptly notify the Trustee if a claim is made by a third party with respect to this Agreement, the Certificates or any asset of the Trust Fund entitling the Master Servicer or the Special Servicer, as the case may be, to indemnification hereunder, whereupon the Trustee, on behalf of the Trust, shall assume the defense of any such claim (with counsel reasonably satisfactory to the Master Servicer or the Special Servicer, as applicable) and pay out of the Collection Account all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy out of the Collection Account any judgment or decree that may be entered against it or them in respect of such claim. Any failure to so notify the Trustee shall not affect any rights the Master Servicer or the Special Servicer may have to indemnification under this Agreement or otherwise, unless the Trust's defense of such claim is prejudiced thereby and the Trustee delivers a certification explaining the prejudice. The Trustee or the Master Servicer shall promptly make from the Collection Account any payments certified by the Master Servicer or the Special Servicer to the Trustee as required to be made to the Master Servicer or the Special Servicer, as the case may be, pursuant to this Section 8.27(a). The indemnification provided herein shall survive the resignation or termination of the Master Servicer or the Special Servicer.
(b) The Master Servicer agrees to indemnify the Trust, the Trustee, the Fiscal Agent, the Special Servicer (if different than the Master Servicer), the Depositor, and any director, officer, employee or agent thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related Non-Serviced Mortgage Loan Pooling costs, judgments and Servicing any other costs, liabilities, fees and expenses that any of them may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer's duties hereunder or by reason of 140 reckless disregard of the Master Servicer's obligations and duties hereunder, and if in any such situation the Master Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor Master Servicer. Each of the Trustee, the Depositor, the Special Servicer (if different than the Master Servicer), and the Fiscal Agent shall immediately notify the Master Servicer if a claim is made by a third party with respect to this Agreement, the Certificates or any asset of the Trust Fund entitling the Trust, the Trustee, the Depositor, the Special Servicer or the Fiscal Agent, as the case may be, to indemnification hereunder, whereupon the Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Special Servicer, or the Fiscal Agent, as applicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree that may be entered against it or them in respect of such claim. Any failure to so notify the Master Servicer shall not affect any rights the Trust, the Trustee, the Depositor, Special Servicer, or the Fiscal Agent may have to indemnification under this Agreement or otherwise, unless the Master Servicer's defense of such claim is materially prejudiced thereby and the Master Servicer delivers a certification explaining the prejudice. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent.
(c) The Special Servicer agrees to indemnify the Trust, the Trustee, the Fiscal Agent, the Master Servicer (if different than the Special Servicer), the Depositor, and any director, officer, employee or agent thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses that any of them may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Special Servicer's duties hereunder or by reason of reckless disregard of the Special Servicer's obligations and duties hereunder by the Special Servicer. Each of the Trustee, the Fiscal Agent, the Master Servicer (if different than the Special Servicer) and the Depositor shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement, the Certificates or any asset of the Trust Fund entitling the Trust or the Trustee, the Fiscal Agent, the Master Servicer or the Depositor, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Fiscal Agent, the Master Servicer or the Depositor, as applicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree that may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust, the Trustee, the Fiscal Agent, the Master Servicer or the Depositor may have to indemnification under this Agreement or otherwise, unless the Special Servicer's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Special Servicer, the Master Servicer, the Trustee and the Fiscal Agent.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify and hold the TrustCo-Trustees, the Custodian, the FHA Custodian, FUNB, the Certificate Insurer and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them Certificateholder harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate AdministratorCo-Trustees, the Custodian, the Trust Advisor or FHA Custodian, FUNB, the Master Certificate Insurer and any Certificateholder may sustain in any way related to the failure of the Servicer and the Claims Administrator to perform its duties and service the Mortgage Loans in compliance with the terms of this Agreement. The Servicer shall immediately notify the Special Servicer Co-Trustees, the Custodian, the FHA Custodian, FUNB, the Certificate Insurer and each Certificateholder if a claim is made by a third party with respect to this Agreement or Agreement, and the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume (with the consent of the applicable indemnified parties) the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including reasonable counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Servicer, the Claims Administrator, the Co-Trustees, the Custodian, the FHA Custodian, FUNB, the Certificate Insurer and/or Certificateholder in respect of such claim. Any failure The applicable Co-Trustee shall reimburse the Servicer from the related Expense Account pursuant to so notify Section 6.03(c)(i), and, if necessary, from amounts otherwise payable to the Special Servicer shall not affect any rights Holders of the Class X Certificates from the Pool Remaining Amount Available with respect to each Pool for all amounts advanced by it pursuant to the preceding sentence with respect to the Trust Fund except when the claim relates directly to the failure of the Servicer or the Trustee, Claims Administrator to service and administer the Depositor, Mortgages in compliance with the Certificate Administratorterms of this Agreement.
(b) The Representative agrees to indemnify and hold the Co-Trustees, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwiseFHA Custodian, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special ServicerFUNB, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer Insurer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held each Certificateholder harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments judgments, and any other costs, liabilities, fees and expenses incurred that the Co-Trustees, the Custodian, the FHA Custodian, FUNB, the Certificate Insurer and any Certificateholder may sustain in connection any way related to the failure of the Servicer, if it is an affiliate thereof, or the failure of the Representative to perform their respective duties in compliance with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing the terms of this Agreement and in the best interests of the Certificate Insurer and the Certificateholders. The Representative shall immediately notify the Co-Trustees, the Custodian, the FHA Custodian, FUNB, the Certificate Insurer and each Certificateholder if a claim is made by a third party with respect to this Agreement, and relating to any Non-Serviced Mortgage Loan the Representative shall assume (but excluding with the consent of the applicable indemnified parties) the defense of any such losses allocable claim and pay all expenses in connection therewith, including reasonable counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against the Servicer, the Representative, the Co-Trustees, the Custodian, FUNB, the FHA Custodian, the Certificate Insurer and/or Certificateholder in respect of such claim. The applicable Co-Trustee shall reimburse the Representative from the related Expense Account pursuant to Section 6.03(c)(i), and, if necessary, from amounts otherwise payable to the related Non-Serviced Companion Loans)Holders of the Class X Certificates from the Pool Remaining Amount Available with respect to each Pool for all amounts advanced by it pursuant to the preceding sentence with respect to the Trust Fund except when the claim relates directly to the Representative's indemnification pursuant to Section 2.05 and Section 3.03 or to the failure of the Servicer, reasonably requiring if it is an affiliate of the use Representative, to perform its obligations to service and administer the Mortgages in compliance with the terms of counsel this Agreement, or the incurring failure of expenses other than any losses incurred by reason the Representative to perform its duties in compliance with the terms of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence this Agreement and in the performance best interests of its duties under the related Non-Serviced Mortgage Loan Pooling Certificate Insurer and Servicing Agreementthe Certificateholders.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Money Store Home Equity Corp)
Indemnification; Third Party Claims. (a) The Each Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of the such Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified by the Trust, and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action or claim relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B NotesLoan, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses Agreement, and (ii) any action properly taken by the such Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the such Special Servicer by the Trustee, the Controlling Class Representative Trustee or the applicable Master Servicer pursuant to any provision of this Agreement, and the such Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees, members, managers and employees or agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the such Special Servicer of any information included by the such Special Servicer in the report required to be provided by the such Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or dutiesand duties hereunder. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Such Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trusteesuch Special Servicer) and the Trust shall pay, from amounts on deposit in the Collection applicable Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (andtermination of this Agreement and the termination or resignation of the applicable Special Servicer. Any expenses incurred or indemnification payments made by the Trust shall be reimbursed by the applicable Special Servicer, if and a court of competent jurisdiction makes a final, non-appealable judgment that such Special Servicer was found to have acted with willful misfeasance, bad faith or negligence. Notwithstanding the extent that the amount due foregoing, if such loss, liability or expense relates specifically to a Serviced Companion Loan, then such indemnification shall be paid from out of collections on, and other proceeds of, any such Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24Loan.
(b) The Each Special Servicer agrees to indemnify the Trust, and each other party to this Agreement the Trustee, the Depositor, the applicable Master Servicer, the Paying Agent and any directorpartner, officerrepresentative, Affiliate, member, manager, employee or director, officer, employee, agent or Controlling Person thereofof the Trustee, the Depositor and the applicable Master Servicer, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Trust or the Trustee, the Depositor, the Paying Agent or the applicable Master Servicer may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of such Special Servicer's duties hereunder or by reason of negligent disregard of such Special Servicer's obligations and duties hereunder by the such Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer shall immediately notify the applicable Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be, to indemnification hereunder, whereupon the such Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the applicable Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer may have to indemnification under this Agreement or otherwise, unless the such Special Servicer’s 's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the applicable Special Servicer, the Paying Agent or the Trustee. Any expenses incurred or indemnification payments made by the applicable Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the such Special Servicer was not culpable of willful misfeasance, bad faith or such indemnifying negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party was is found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement initial General Special Servicer and the termination Depositor expressly agree that the only information furnished by or resignation on behalf of the General Special Servicer for inclusion in the Preliminary Prospectus Supplement and the Final Prospectus Supplement is the information set forth in the paragraphs under the caption "TRANSACTION PARTIES--The Special Servicers--Centerline Servicing Inc.," with respect to the General Special Servicer, of the Certificate AdministratorPreliminary Prospectus Supplement and Final Prospectus Supplement. The initial DC Hilton Special Servicer and the Xxxxxxxxx expressly agree that the only information furnished by or on behalf of the DC Hilton Special Servicer for inclxxxxx xx the Preliminary Prospectus Supplement and the Final Prospectus Supplement is the information set forth in the paragraphs under the caption "TRANSACTION PARTIES--The Special Servicers--Prudential Asset Resources, Inc.," with respect to the CustodianDC Hilton Special Servicer, of the Trust Advisor, the Master Servicer or the TrusteeXxxxxxxxxry Prospectus Supplement and Final Prospectus Supplement.
(d) Any NonThe 2006-Serviced Mortgage Loan PWR14 Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of such Nonthe 2006-Serviced Mortgage Loan PWR14 Special Servicer shall be indemnified by the Trust and held harmless against (i) the Trust’s 's pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Nonthe 2006-Serviced Mortgage Loan PWR14 Pooling and Servicing Agreement and this Agreement, and relating to any Nonthe Non Trust-Serviced Mortgage Pari Passu Loan (but excluding any such losses allocable to the related Non-Non Trust Serviced Companion LoansLoan), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Nonthe 2006-Serviced Mortgage Loan PWR14 Special Servicer’s 's willful misfeasance, bad faith or negligence in the performance of its duties under the related Non2006-Serviced Mortgage Loan PWR14 Pooling and Servicing AgreementAgreement and (ii) any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses relating to the Non Trust-Serviced Pari Passu Loan, but only to the extent that such losses arise out of the actions of the applicable Master Servicer, the applicable Special Servicer or the Trustee, and only to the extent that such actions are in violation of such party's duties under the provisions of the this Agreement and to the extent that such actions are the result of such party's negligence, bad faith or willful misconduct.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq15)
Indemnification; Third Party Claims. (a) The Special Servicer and any AffiliateMaster Servicer, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, their respective directors, officers, employees, members, managers employees and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to the Certificates or any Non-Serviced Mortgage Loan (but excluding any such losses allocable to asset of the related Non-Serviced Companion Loans)Trust Fund, reasonably requiring the use of counsel or the incurring of expenses other than any losses loss, liability or expense: (i) specifically required to be borne by such Person pursuant to the terms hereof; (ii) that constitutes a Servicing Advance (and is otherwise specifically reimbursable hereunder); (iii) that was incurred in connection with claims against such party resulting from (A) any breach of a representation, warranty or covenant made herein by reason of any Non-Serviced Mortgage Loan Special Servicer’s such party, (B) willful misfeasance, bad faith or negligence in the performance of its obligations or duties hereunder by such party, or from negligent disregard of such obligations or duties, or (C) any violation by such party of any state or federal securities law; or (iv) imposed by any taxing authority if such loss, liability or expense is not specifically reimbursable pursuant to the terms of this Agreement. Each of the Master Servicer and the Special Servicer shall promptly notify the Trustee if a claim is made by a third party with respect to this Agreement, the Certificates or any asset of the Trust Fund entitling the Master Servicer or the Special Servicer, as the case may be, to indemnification hereunder, whereupon the Trustee, on behalf of the Trust, shall assume the defense of any such claim (with counsel reasonably satisfactory to the Master Servicer or the Special Servicer, as applicable) and pay out of the Collection Account all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy out of the Collection Account any judgment or decree that may be entered against it or them in respect of such claim. Any failure to so notify the Trustee shall not affect any rights the Master Servicer or the Special Servicer may have to indemnification under this Agreement or otherwise, unless the Trust's defense of such claim is prejudiced thereby and the Trustee delivers a certification explaining the prejudice. The Trustee or the Master Servicer shall promptly make from the Collection Account any payments certified by the Master Servicer or the Special Servicer to the Trustee as required to be made to the Master Servicer or the Special Servicer, as the case may be, pursuant to this Section 8.27(a). The indemnification provided herein shall survive the resignation or termination of the Master Servicer or the Special Servicer.
(b) The Master Servicer agrees to indemnify the Trust, the Trustee, the Fiscal Agent, the Special Servicer (if different than the Master Servicer), the Depositor, and any director, officer, employee or agent thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related Non-Serviced Mortgage Loan Pooling costs, judgments and Servicing any other costs, liabilities, fees and expenses that any of them may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer's duties hereunder or by reason of negligent disregard of the Master Servicer's obligations and duties hereunder (unless such claim, loss, penalty, fine, forfeiture, legal fee and related cost or judgment results from the willful misfeasance, bad faith or negligence of such indemnified party), and if in any such situation the Master Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor Master Servicer. Each of the Trustee, the Depositor, the Special Servicer (if different than the Master Servicer), and the Fiscal Agent shall immediately notify the Master Servicer if a claim is made by a third party with respect to this Agreement, the Certificates or any asset of the Trust Fund entitling the Trust, the Trustee, the Depositor, the Special Servicer or the Fiscal Agent, as the case may be, to indemnification hereunder, whereupon the Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Special Servicer, or the Fiscal Agent, as applicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree that may be entered against it or them in 143 respect of such claim. Any failure to so notify the Master Servicer shall not affect any rights the Trust, the Trustee, the Depositor, Special Servicer, or the Fiscal Agent may have to indemnification under this Agreement or otherwise, unless the Master Servicer's defense of such claim is materially prejudiced thereby and the Master Servicer delivers a certification explaining the prejudice. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent.
(c) The Special Servicer agrees to indemnify the Trust, the Trustee, the Fiscal Agent, the Master Servicer (if different than the Special Servicer), the Depositor, and any director, officer, employee or agent thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses that any of them may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Special Servicer's duties hereunder or by reason of negligent disregard of the Special Servicer's obligations and duties hereunder by the Special Servicer (unless such claim, loss, penalty, fine, forfeiture, legal fee and related cost or judgment results from the willful misfeasance, bad faith or negligence of such indemnified party). Each of the Trustee, the Fiscal Agent, the Master Servicer (if different than the Special Servicer) and the Depositor shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement, the Certificates or any asset of the Trust Fund entitling the Trust or the Trustee, the Fiscal Agent, the Master Servicer or the Depositor, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Fiscal Agent, the Master Servicer or the Depositor, as applicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree that may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust, the Trustee, the Fiscal Agent, the Master Servicer or the Depositor may have to indemnification under this Agreement or otherwise, unless the Special Servicer's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Special Servicer, the Master Servicer, the Trustee and the Fiscal Agent.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
Indemnification; Third Party Claims. (a) The Special Subject to Section 6.3, the Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent of hold harmless the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), Owner against any and all claims, losses, penalties, fines, forfeitures, legal fees and Losses that the Owner may sustain in any way related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special failure of such Servicer by to service the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred Mortgage Loans in connection compliance with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; provided, however, the Servicer shall not be liable hereunder (Ba) which constitutes a Servicing Advance that is otherwise reimbursable to the extent such Losses directly result from the Custodian's negligent action, negligent failure to act, bad faith, willful misconduct or breach under this the Custodial Agreement; (C, dated as of November 1, 2003, among the Owner, Countrywide and the Custodian,(b) incurred in connection with respect to any legal action or claim against inaction in accordance with the party seeking indemnification, direction or consent of the Owner or (c) resulting from any breach on the part of that Owner's failure to respond to a request by the Servicer for direction or consent in accordance with Section 3.1(c) hereof. The Servicer shall immediately notify the Owner if a claim is made by a third party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under respect to this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeLoans. The Special Servicer shall assume (with the written consent of the Owner) the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all reasonable expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it the Servicer or them the Owner in respect of such claim. The Master Servicer shall promptly make follow any written instructions received from the Collection Account (and, if Owner in connection with any such claim and the Owner shall promptly reimburse the Servicer for all amounts reasonably advanced by it pursuant to the extent that preceding sentence, except when the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the claim (a) is related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer's obligations to indemnify the Owner pursuant hereto, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special results from the failure of the Servicer agrees to indemnify service the Trust, and each other party to Mortgage Loans in compliance with the terms of this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising (c) results from or as a result of the Servicer's willful misfeasancemisconduct, bad faith or negligence in performing its duties under this Agreement. The Owner shall indemnify and hold harmless the performance Servicer against any and all Losses that the Servicer may sustain as a result of duties hereunder (a) any act or by reason omission on the part of negligent disregard the Owner or (b) a breach of any of the Owner's representations, warranties or covenants or obligations contained herein.
(a) regarding the execution and duties hereunder delivery of release and reconveyance documents, and shall immediately complete, sign and return to the Servicer any additional documents that may be required of the holder of record of the Mortgage and may be reasonably requested by the Special Servicer in order to permit the Servicer to comply with the Servicer's servicing obligations, and, in its capacity as the holder of record, shall take such other action as may be reasonably requested by the Servicer. The TrusteeIn addition, if, as a result of the recording of the related Assignment of Mortgage, the DepositorOwner, in its capacity as the Certificate Administratorholder of record, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party receives written notice of any action with respect to this Agreement the related Mortgage or the Specially Serviced Mortgage Loans entitling the Trust or the Trusteerelated Mortgaged Property, the Depositor, Owner shall send a copy of such notice to the Certificate Administrator, Servicer immediately in accordance with the Custodian, provisions of Section 9.8 of this Agreement. The Owner agrees that the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory have no liability to the Trustee, Owner for the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any Owner's failure to so notify comply with the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under provisions set forth in this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligenceparagraph.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GS Mortgage GSAA Home Eq. Trust 2004-7)
Indemnification; Third Party Claims. (ai) The Special Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent of hold harmless the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), Owner against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or resulting from the Certificates or any exercise defense of any right under this Agreement reasonably requiring claim against the use of counsel or the incurring of expenses and (ii) Owner by a third party in any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing way related to the Special failure of the Servicer by to service the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred Mortgage Loans in connection compliance with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; provided, however, the Servicer shall not be liable hereunder with respect to (A) any action or inaction resulting from the written direction or consent of the Owner, (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; any action or inaction resulting from the Owner’s failure to cause any Collateral File (or portion thereof) to be released to the Servicer pursuant to Sections 2.18 or 4.2(c), or (C) incurred in connection with any legal action or claim against the party seeking indemnification, inaction resulting from any breach on the part of that party of a representation Owner’s failure to comply with Section 5.1(b) or warranty made in this Agreement; Section 5.6, or (D) any indirect, special or consequential damages, losses, costs or expenses incurred in connection by Owner.
(ii) The Servicer shall promptly notify the Owner if a claim is made by a third party with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under respect to this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In that the case of any Servicer determines in its good faith judgment will materially affect the Owner’s interest in such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeLoans. The Special Servicer shall assume (with the written consent of the Owner) the defense of any such claim and, subject to clause (with counsel reasonably satisfactory to the Trusteeiii) and the Trust shall payof this Section 5.1, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all reasonable expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which that may be entered against it the Servicer or them the Owner in respect of such claim. The Master Servicer shall promptly make follow any written instructions received from the Collection Owner in connection with any such claim. The Servicer shall have the right to reimburse itself from the Account for all expenses, advances and liabilities incurred by the Servicer in respect of any such claim (andwhether or not the Servicer has assumed the defense thereof), if and except when the claim (x) is related to the extent Servicer’s obligations to indemnify the Owner pursuant hereto, (y) results from the failure of the Servicer to service the Mortgage Loans in compliance with the terms of this Agreement, or (z) results from the Servicer’s willful misconduct, bad faith or negligence in performing its duties under this Agreement.
(iii) If the Owner receives service of a summons or other first legal process, the Servicer shall not be liable for any costs or expenses pursuant to the indemnity in this Section 5.1 unless the Owner provides written notice to the Servicer that describes the nature of the claim within a reasonable time after service of such summons or other first legal process upon the Owner; provided, however, that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of Owner's failure to notify the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24paragraph shall not relieve the Servicer from any liability that the Servicer may have to the Owner otherwise than on account of this indemnity. The Servicer shall not be required to indemnify any person for any settlement of any claim effected without the Servicer's consent, which consent shall not be unreasonably withheld.
(b) The Special Servicer agrees With respect to indemnify any Mortgage Loan, if the TrustOwner records or causes to be recorded the related Assignment of Mortgage designating the Owner as the holder of record of the Mortgage in the appropriate public recording office of the jurisdiction in which the related Mortgaged Property is located, and each other party the Owner, in its capacity as the holder of record, receives written notice of any action with respect to this Agreement and any directorthe related Mortgage or Mortgaged Property, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all the Owner shall promptly send a copy of such notice to the Servicer in accordance with Section 9.8. The Servicer shall have no liability to the Owner for claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and or any other costscosts or expenses, liabilities, fees and expenses that such person may sustain arising result from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any Owner’s failure to so notify comply with the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under provisions set forth in this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligenceparagraph.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Servicing Agreement (J.P. Morgan Alternative Loan Trust 2006-A1)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent Each of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee Depositor, and the Certificate Administrator as required to be made to Transferor (solely for the Special Servicer pursuant to purpose of this Section 9.24.
(b5.21, the “Indemnifying Parties”) The Special Servicer agrees to indemnify and to hold each of the TrustMaster Servicer, the Depositor, the Trustee, the Transferor[, the Certificate Insurer] and each other party to Certificateholder (solely for the purpose of this Agreement and any directorSection 5.21, officer, member, manager, employee or agent or Controlling Person thereof, and hold them the “Indemnified Parties”) harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may the Indemnified Parties may, respectively, sustain arising from in any way related to the failure of any one or as a result more of the willful misfeasance, bad faith or negligence Indemnifying Parties to perform its respective duties in compliance with the performance terms of duties hereunder or by reason of negligent disregard of obligations this Agreement. Each Indemnified Party and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately promptly notify the Special Servicer other Indemnified Parties if a claim is made by a third party with respect to this Agreement or Agreement, and the Specially Serviced Mortgage Loans entitling Master Servicer shall [with the Trust or the Trustee, the Depositor, consent of the Certificate AdministratorInsurer, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, such consent not to indemnification hereunder, whereupon the Special Servicer shall be unreasonably withheld,] assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including reasonable counsel feesfees [approved by the Certificate Insurer], and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Indemnified Parties in respect of such claim. Any failure to so notify The Trustee shall, out of the Special Servicer shall not affect any rights assets of the Trust or the TrusteeFund, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or reimburse the Master Servicer may have in accordance with Section 5.14 hereof for all amounts advanced by it pursuant to indemnification under the preceding sentence except when the claim relates directly to the failure of the Master Servicer to service and administer the Mortgages in compliance with the terms of this Agreement or otherwiseAgreement; provided, unless that the Special Master Servicer’s defense indemnity hereunder shall not be in any manner conditioned on the availability of funds for such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencereimbursement.
(cb) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive Trustee, at the termination written request of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or (which the Trustee.
(dTrustee may conclusively rely on) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified reimburse the Transferor from amounts otherwise distributable on the Class R Certificates for all amounts advanced by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Transferor pursuant to the related Non-Serviced Companion Loans), reasonably requiring second sentence of Section 4.3 of the use Purchase and Sale Agreement except when the relevant claim relates directly to the failure of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Transferor to perform its duties under in compliance with the related Non-Serviced Mortgage Loan Pooling terms of the Purchase and Servicing Sale Agreement.
Appears in 1 contract
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Transferor, the Certificate Insurer, the Depositor and any Affiliate, director, officer, employee, member, manager or agent the Trustee (each an "Indemnified Party") and hold harmless each of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Mortgage Loans in compliance with the terms of this Agreement; provided, however that if the Servicer is not liable pursuant to the provisions of Section 10.1 (d) for its failure to perform its duties and service the Mortgage Loans in compliance with the terms of this Agreement, then the provisions of this Section 10.1 shall have no force and effect with respect to such failure.
(b) The Transferor, the Certificate Insurer, the Depositor or the Trustee, as the case may be, and the Servicer shall promptly notify the other costsIndemnified Parties if a claim is made by a third party with respect to a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Mortgage Loans in compliance with the terms of this Agreement. The Servicer shall promptly notify the Trustee, liabilitiesthe Certificate Insurer, and the Depositor of any claim of which it has been notified pursuant to this Section 10.1 by a Person other than the Depositor, and, in any event, shall promptly notify the Depositor and the Certificate Insurer of its intended course of action with respect to any claim.
(c) The Servicer shall be entitled to participate in and, upon notice to the Indemnified Party, assume the defense of any such action or claim in reasonable cooperation with, and with the reasonable cooperation of, the Indemnified Party. The Indemnified Party will have the right to employ its own counsel in any such action in addition to the counsel of the Servicer, but the fees and expenses of such counsel will be at the expense of such Indemnified Party, unless (a) the employment of counsel by the Indemnified Party at its expense has been authorized in writing by the Servicer, (b) the Servicer has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, or (c) the named parties to any such action or proceeding (including any impleaded parties) include both the Servicer and one or more Indemnified Parties, and the Indemnified Parties shall have been advised by counsel that there may be one or more legal defenses available to them which are different from or additional to those available to the Servicer. The Servicer shall not be liable for any settlement of any such claim or action unless the Servicer shall have consented thereto or be in default on its obligations hereunder. Any failure by an Indemnified Party to comply with the provisions of this Section 10.1 shall relieve the Servicer of liability only if such failure is materially prejudicial to the position of the Servicer and then only to the extent of such prejudice.
(d) None of the Transferor, the Depositor or the Servicer or any of the directors, officers, employees or agents of the Transferor, the Depositor or the Servicer, or members or affiliates of the Depositor shall be under any liability to the Trustee or the Certificateholders for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however that this provision shall not protect the Transferor, the Depositor, the Servicer or any such person may sustain arising from against the remedies provided herein for the breach of any warranties, representations or as a result covenants made herein, or against any specific liability imposed on the Transferor, the Depositor or the Servicer herein, or against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of the duties of the Servicer, the Depositor or the Transferor, as the case may be, or by reason of reckless disregard of the obligations and duties of the Servicer, the Depositor or the Transferor, as the case may be, hereunder. The Transferor, the Depositor, the Servicer and any director, officer, employee or agent of the Transferor, the Depositor or the Servicer, or any member or affiliate of the Depositor may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder.
(e) The Servicer, the Transferor and the Depositor and any director, officer, employee or agent of the Servicer, the Transferor or the Depositor shall be indemnified by the Trust Fund and held harmless against any loss, liability or expense incurred in connection with any audit, controversy or judicial proceeding relating to a governmental taxing authority or any legal action relating to this Agreement or the Certificates, other than any loss, liability or expense related to any specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Agreement) and any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent reckless disregard of obligations and duties hereunder by hereunder. Except as otherwise provided herein, none of the Special Servicer. The Transferor, the Depositor or the Servicer shall be under any obligation to appear in, prosecute or defend any legal action that is not related to its respective duties under this Agreement; provided, however, that, except as otherwise provided herein, any of the Transferor, the Depositor or the Servicer may, with the prior consent of the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor in its discretion undertake any such action which it may deem necessary or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party desirable with respect to this Agreement or and the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) rights and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct duties of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement parties hereto and the termination or resignation interests of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.Certificateholders 115
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
Indemnification; Third Party Claims. (a) The Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless by the Trust, out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any the A/B Notes Mortgage Loan (including REO Loans), if and to the extent that the matter relates to such A/B Mortgage Loan) against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative Trustee or the Master Servicer pursuant to any provision of this Agreement, Agreement in each case and the Special Servicer and each of its partners, 294 representatives, Affiliates, members, managers, directors, officers, employees, members, managers employees and agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeSpecial Servicer) and the Trust shall pay, from amounts on deposit in the Collection Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out termination of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee the termination or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result resignation of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer Trust shall be reimbursed by the party so paid or at the direction of which a payment was madeSpecial Servicer, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive . Notwithstanding the termination of this Agreement and the termination foregoing, if such loss, liability or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-expense relates specifically to a particular Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Pari Passu Mortgage Loan (or another Mortgage Loan included in the Trust) or a particular Serviced Companion Mortgage Loan, then such indemnification shall be paid out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan, other Mortgage Loan or Serviced Companion Mortgage Loan, as applicable. If such loss, liability or expense relates to an A/B Mortgage Loan but excluding any such losses allocable does not relate to the related Non-Serviced Companion Loans)A Note and does not relate primarily to the administration of the Trust or any REMIC formed hereunder or to any determination respecting the amount, reasonably requiring payment or avoidance of any tax under the use REMIC provisions of counsel the Code or the incurring of expenses other than any losses incurred by reason actual payment of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasanceREMIC tax or expense, bad faith or negligence in the performance then such indemnification shall be paid first out of its duties under collections on, and other proceeds of, the related Non-Serviced Mortgage Loan Pooling B Note until such point as such indemnification is paid in full or a Final Recovery Determination has been made with respect to such B Note and Servicing Agreementonly then out of collections on, and other proceeds of, the related A Note.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006 - HQ9)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Trust, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and "control persons," as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the “Special Servicer Indemnified Parties”each an "INDEMNIFIED PARTY") shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement; provided, however, that if the Servicer is not liable pursuant to the provisions of SECTION 9.01(D) hereof for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this SECTION 9.01 shall have no force and effect with respect to such failure.
(b) The Loan Originator, the Depositor, the Indenture Trustee or the Noteholders, as the case may be, shall promptly notify the Servicer if a claim is made by a third party with respect to a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement. The Servicer shall promptly notify the Indenture Trustee and the Depositor of any claim of which it has been notified pursuant to this SECTION 9.01 by a Person other coststhan the Depositor, liabilitiesand, in any event, shall promptly notify the Depositor of its intended course of action with respect to any claim.
(c) The Servicer shall be entitled to participate in and, upon notice to the Indemnified Party, assume the defense of any such action or claim in reasonable cooperation with, and with the reasonable cooperation of, the Indemnified Party. The Indemnified Party will have the right to employ its own counsel in any such action in addition to the counsel of the Servicer, but the fees and expenses of such counsel will be at the expense of such Indemnified Party, unless (i) the employment of counsel by the Indemnified Party at its expense has been authorized in writing by the Servicer, (ii) the Servicer has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Servicer and one or more Indemnified Parties, and the Indemnified Parties shall have been advised by counsel that such person there may sustain arising be one or more legal defenses available to them which are different from or as a result additional to those available to the Servicer. The Servicer shall not be liable for any settlement of any such claim or action unless the Servicer shall have consented thereto or be in default on its obligations hereunder. Any failure by an Indemnified Party to comply with the provisions of this SECTION 9.01 shall relieve the Servicer of liability only if such failure is materially prejudicial to the defense of the Servicer of such claim or action and then only to the extent of such prejudice.
(d) None of the Loan Originator, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originator, the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties of the Servicer, the Depositor or the Loan Originator, as the case may be. The Loan Originator, the Depositor, the Servicer and any of their respective Affiliates, directors, officers, employees, agents may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder.
(e) The Servicer, the Loan Originator, the Depositor, the Indenture Trustee and any of their respective directors, officers, employees, agents, Affiliates and "control persons," as such term is used under the Act and the Securities Exchange Act of 1934, as amended, shall be indemnified by the Trust and held harmless against any loss, liability or expense incurred in connection with any audit, controversy or judicial proceeding relating to a governmental taxing authority or any legal action relating to this Agreement or the Securities, other than any loss, liability or expense related to any specific Loan or Loans (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Agreement) and any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent reckless disregard of obligations and duties hereunder by hereunder. Except as otherwise provided herein, none of the Special Servicer. The TrusteeLoan Originator, the Depositor, the Certificate AdministratorServicer or the Indenture Trustee shall be under any obligation to appear in, prosecute or defend any legal action that is not related to its respective duties under this Agreement and which may involved it in any expenses or liability; provided, however, that, except as otherwise provided herein, any of the Loan Originator, the CustodianDepositor, the Trust Advisor Servicer or the Master Servicer shall immediately notify Indenture Trustee may, with the Special Servicer if a claim is made by a third party prior consent of the Majority Noteholders, in its discretion undertake any such action which it may deem necessary or desirable with respect to this Agreement or and the Specially Serviced Mortgage Loans entitling rights and duties of the Trust or parties hereto and the Trusteeinterests of the Issuer hereunder. In such event, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) legal expenses and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect costs of such claim. Any failure to so notify the Special Servicer shall not affect action and any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer liability resulting therefrom shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct therefor out of the Special Servicer was not culpable or such indemnifying party was found Collection Account, to not have acted with willful misfeasancethe extent that funds are available therein, bad faith or negligenceas provided in SECTION 5.01(C)(1).
(cf) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer Affiliate thereof shall be indemnified by the Trust and held harmless by the Owner Trust against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses liability or expense incurred in connection with any legal action relating third party claims brought against the Servicer and any Affiliate thereto, which are related to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the servicing of the Loans in accordance with this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable including actions taken by the Servicer in accordance with written instructions given to the related Non-Serviced Companion Loans)Servicer by the Noteholders, reasonably requiring the use of counsel or the incurring of expenses other than any losses liability or expense: (i) specifically required to be borne thereby pursuant to the terms hereof or otherwise incidental to the performance of obligations and duties hereunder, including the prosecution of enforcement actions in respect of any specific Loan or Loans (except as any such liability or expense shall be otherwise reimbursable pursuant to this Agreement); (ii) incurred in connection with any breach of a representation, warranty or covenant made therein; (iii) incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence by the Servicer or its Affiliates in the performance of its or their obligations or duties under hereunder; (iv) incurred in connection with any violation by the related Non-Serviced Mortgage Loan Pooling Servicer or its Affiliates of any state or federal securities law; (v) claims for which the Servicer is required to indemnify any Person pursuant to this SECTION 9.01; or (vi) which result from the failure of the Servicer to service and Servicing administer the Loans in strict compliance with the terms of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Franchise Finance Corp of America)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Trust, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and "control persons," as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the “Special Servicer Indemnified Parties”each an "INDEMNIFIED PARTY") shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement; provided, however, that if the Servicer is not liable pursuant to the provisions of SECTION 9.01(d) hereof for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this SECTION 9.01 shall have no force and effect with respect to such failure.
(b) The Loan Originator, the Depositor, the Indenture Trustee or the Noteholders, as the case may be, shall promptly notify the Servicer if a claim is made by a third party with respect to a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement. The Servicer shall promptly notify the Indenture Trustee and the Depositor of any claim of which it has been notified pursuant to this SECTION 9.01 by a Person other coststhan the Depositor, liabilitiesand, in any event, shall promptly notify the Depositor of its intended course of action with respect to any claim.
(c) The Servicer shall be entitled to participate in and, upon notice to the Indemnified Party, assume the defense of any such action or claim in reasonable cooperation with, and with the reasonable cooperation of, the Indemnified Party. The Indemnified Party will have the right to employ its own counsel in any such action in addition to the counsel of the Servicer, but the fees and expenses of such counsel will be at the expense of such Indemnified Party, unless (i) the employment of counsel by the Indemnified Party at its expense has been authorized in writing by the Servicer, (ii) the Servicer has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Servicer and one or more Indemnified Parties, and the Indemnified Parties shall have been advised by counsel that such person there may sustain arising be one or more legal defenses available to them which are different from or as a result additional to those available to the Servicer. The Servicer shall not be liable for any settlement of any such claim or action unless the Servicer shall have consented thereto or be in default on its obligations hereunder. Any failure by an Indemnified Party to comply with the provisions of this SECTION 9.01 shall relieve the Servicer of liability only if such failure is materially prejudicial to the defense of the Servicer of such claim or action and then only to the extent of such prejudice.
(d) None of the Loan Originator, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originator, the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties of the Servicer, the Depositor or the Loan Originator, as the case may be. The Loan Originator, the Depositor, the Servicer and any of their respective Affiliates, directors, officers, employees, agents may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder.
(e) The Servicer, the Loan Originator, the Depositor, the Indenture Trustee and any of their respective directors, officers, employees, agents, Affiliates and "control persons," as such term is used under the Act and the Securities Exchange Act of 1934, as amended, shall be indemnified by the Trust and held harmless against any loss, liability or expense incurred in connection with any audit, controversy or judicial proceeding relating to a governmental taxing authority or any legal action relating to this Agreement or the Securities, other than any loss, liability or expense related to any specific Loan or Loans (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Agreement) and any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent reckless disregard of obligations and duties hereunder by hereunder. Except as otherwise provided herein, none of the Special Servicer. The TrusteeLoan Originator, the Depositor, the Certificate AdministratorServicer or the Indenture Trustee shall be under any obligation to appear in, prosecute or defend any legal action that is not related to its respective duties under this Agreement and which may involved it in any expenses or liability; provided, however, that, except as otherwise provided herein, any of the Loan Originator, the CustodianDepositor, the Trust Advisor Servicer or the Master Servicer shall immediately notify Indenture Trustee may, with the Special Servicer if a claim is made by a third party prior consent of the Majority Noteholders, in its discretion undertake any such action which it may deem necessary or desirable with respect to this Agreement or and the Specially Serviced Mortgage Loans entitling rights and duties of the Trust or parties hereto and the Trusteeinterests of the Issuer hereunder. In such event, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) legal expenses and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect costs of such claim. Any failure to so notify the Special Servicer shall not affect action and any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer liability resulting therefrom shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct therefor out of the Special Servicer was not culpable or such indemnifying party was found Collection Account, to not have acted with willful misfeasancethe extent that funds are available therein, bad faith or negligence.
(c) The indemnification as provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the TrusteeSECTION 5.01(c)(1).
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Franchise Finance Corp of America)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Transferor, the Owner Trustee, the Trust, the Depositor and any Affiliate, director, officer, employee, member, manager or agent the Indenture Trustee (each an "Indemnified Party") and hold harmless each of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Home Loans in compliance with the terms of this Agreement; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 9.01(d) hereof for its failure to perform its duties and service the Home Loans in compliance with the terms of this Agreement, then the provisions of this Section 9.01 shall have no force and effect with respect to such failure.
(b) The Transferor, the Depositor, the Owner Trustee or the Indenture Trustee, as the case may be, shall promptly notify the Servicer if a claim is made by a third party with respect to a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Home Loans in compliance with the terms of this Agreement. The Servicer shall promptly notify the Indenture Trustee, the Owner Trustee and the Depositor of any claim of which it has been notified pursuant to this Section 9.01 by a Person other coststhan the Depositor, liabilitiesand, in any event, shall promptly notify the Depositor of its intended course of action with respect to any claim.
(c) The Servicer shall be entitled to participate in and, upon notice to the Indemnified Party, assume the defense of any such action or claim in reasonable cooperation with, and with the reasonable cooperation of, the Indemnified Party. The Indemnified Party will have the right to employ its own counsel in any such action in addition to the counsel of the Servicer, but the fees and expenses of such counsel will be at the expense of such Indemnified Party, unless (i) the employment of counsel by the Indemnified Party at its expense has been authorized in writing by the Servicer, (ii) the Servicer has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Servicer and one or more Indemnified Parties, and the Indemnified Parties shall have been advised by counsel that there may be one or more legal defenses available to them which are different from or additional to those available to the Servicer. The Servicer shall not be liable for any settlement of any such claim or action unless the Servicer shall have consented thereto or be in default on its obligations hereunder. Any failure by an Indemnified Party to comply with the provisions of this Section 9.01 shall relieve the Servicer of liability only if such failure is materially prejudicial to the position of the Servicer and then only to the extent of such prejudice.
(d) None of the Transferor, the Depositor, the Servicer or any of the directors, officers, employees or agents of the Transferor, the Depositor or the Servicer, or members or Affiliates of the Depositor shall be under any liability to the Trust or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Transferor, the Depositor, the Servicer or any such person may sustain arising from against the remedies provided herein for the breach of any warranties, representations or as a result covenants made herein, or against any specific liability imposed on the Transferor, the Depositor or the Servicer herein, or against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of the duties of the Servicer, the Depositor or the Transferor, as the case may be, or by reason of reckless disregard of the obligations and duties of the Servicer, the Depositor or the Transferor, as the case may be, hereunder. The Transferor, the Depositor, the Servicer and any director, officer, employee or agent of the Transferor, the Depositor or the Servicer, or any member or Affiliate of the Depositor may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder.
(e) The Servicer, the Transferor and the Depositor and any director, officer, employee or agent of the Servicer, the Transferor or the Depositor shall be indemnified by the Trust and held harmless against any loss, liability or expense incurred in connection with any audit, controversy or judicial proceeding relating to a governmental taxing authority or any legal action relating to this Agreement or the Notes, other than any loss, liability or expense related to any specific Home Loan or Home Loans (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Agreement) and any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent reckless disregard of obligations and duties hereunder by hereunder. Except as otherwise provided herein, none of the Special Servicer. The Transferor, the Depositor or the Servicer shall be under any obligation to appear in, prosecute or defend any legal action that is not related to its respective duties under this Agreement; provided, however, that, except as otherwise provided herein, any of the Transferor, the Depositor or the Servicer may, with the prior consent of the Indenture Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor in its discretion undertake any such action which it may deem necessary or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party desirable with respect to this Agreement or and the Specially Serviced Mortgage Loans entitling rights and duties of the Trust or parties hereto and the Trusteeinterests of the Securityholders hereunder. In such event, the Depositorlegal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust, and the Transferor, the Certificate Administrator, Depositor and the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be entitled to be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct therefor out of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligenceCollection Account.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Ditech Funding Corp Home Loan Owner Trust 1997-1)
Indemnification; Third Party Claims. (a) The Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless by the Trust, out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any the A/B Notes Mortgage Loan (including REO Loans), if and to the extent that the matter relates to such A/B Mortgage Loan) against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative Trustee or the Master Servicer pursuant to any provision of this Agreement, Agreement in each case and the Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees, members, managers employees and agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeSpecial Servicer) and the Trust shall pay, from amounts on deposit in the Collection Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out termination of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee the termination or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result resignation of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer Trust shall be reimbursed by the party so paid or at the direction of which a payment was madeSpecial Servicer, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive . Notwithstanding the termination of this Agreement and the termination foregoing, if such loss, liability or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-expense relates specifically to a particular Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Pari Passu Mortgage Loan (or another Mortgage Loan included in the Trust) or a particular Serviced Companion Mortgage Loan, then such indemnification shall be paid out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan, other Mortgage Loan or Serviced Companion Mortgage Loan, as applicable. If such loss, liability or expense relates to an A/B Mortgage Loan but excluding any such losses allocable does not relate to the related Non-Serviced Companion Loans)A Note and does not relate primarily to the administration of the Trust or any REMIC formed hereunder or to any determination respecting the amount, reasonably requiring payment or avoidance of any tax under the use REMIC provisions of counsel the Code or the incurring of expenses other than any losses incurred by reason actual payment of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasanceREMIC tax or expense, bad faith or negligence in the performance then such indemnification shall be paid first out of its duties under collections on, and other proceeds of, the related Non-Serviced Mortgage Loan Pooling B Note until such point as such indemnification is paid in full or a Final Recovery Determination has been made with respect to such B Note and Servicing Agreement.only then out of collections on, and other proceeds of, the related A Note. 260
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Hq12)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Issuer, the Paying Agent, the Depositor, the Indenture Trustee, each Hedge Counterparty and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and “control persons,” as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the each a “Special Servicer Indemnified PartiesParty”) shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer’s representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Eligible Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party’s fraud, gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(b) hereof for its failure to perform its duties and service the Eligible Loans in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such failure; provided, further that no successor Servicer shall be liable for the actions or omissions of a predecessor Servicer.
(b) None of the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerLoan Originator, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Loan Originator, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicerofficers, as the case employees, agents may be) rely in good faith on any document of any kind which, prima facie, is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Loan Originator agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement Depositor, the Indenture Trustee, each Hedge Counterparty and the termination Noteholders, as the ultimate assignees from the Depositor (each an “Originator Indemnified Party,” together with the Servicer Indemnified Parties, the “Indemnified Parties”), from and against any loss, liability, expense, damage, claim or resignation injury arising out of or based on (i) any breach of any representation, warranty or covenant of the Special ServicerLoan Originator, the Certificate AdministratorServicer or their Affiliates, in any Basic Document, including, without limitation, the Custodianorigination or prior servicing of the Loans by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Loan Originator, the Trust AdvisorServicer or their Affiliates, and (ii) any untrue statement by the Loan Originator, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share its Affiliates of any material fact, including, without limitation, any Officer’s Certificate, statement, report or other document or information prepared by any such Person and all claimsfurnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, losseswithout limitation, penaltiessuch written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Eligible Loans or any such Person’s business, finesoperations or financial condition, forfeitures, legal including reasonable attorneys’ fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage actual or threatened action, proceeding or claim; provided that the Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Originator shall not indemnify an Originator Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicerinjury is due to either an Originator Indemnified Party’s willful misfeasance, bad faith or negligence or by reason of an Originator Indemnified Party’s reckless disregard of its obligations hereunder; provided, further, that the Loan Originator shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable to an Originator Indemnified Party for any losses in respect of the performance of its duties the Eligible Loans, the creditworthiness of the Mortgagors under the Eligible Loans, changes in the market value of the Eligible Loans or other similar investment risks associated with the Eligible Loans arising from a breach of any representation or warranty set forth in Section 3.04 hereto, a remedy for the breach of which is provided in Section 3.05 hereof. The provisions of this indemnity shall run directly to and be enforceable by an Originator Indemnified Party subject to the limitations hereof.
(d) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a “Third Party Claim”), such Indemnified Party shall notify the related Non-Serviced Mortgage Loan Pooling indemnifying parties (each an “Indemnifying Party”) in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party’s receipt thereof, copies of all notices and Servicing Agreementdocuments (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any claim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, while maintaining control over its own defense, the Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, and the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of such terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request; provided, however, that the Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party; provided, further, that the Indemnifying Party shall have the right to reject the selection of counsel by the Indemnified Party if the Indemnifying Party reasonably determines that such counsel is inappropriate in light of the nature of the claim or litigation and shall have the right to assume the defense of such claim or litigation if the Indemnifying Party determines that the manner of defense of such claim or litigation is unreasonable.
Appears in 1 contract
Indemnification; Third Party Claims. The TRS Servicer shall indemnify the TRS Sub-Trust, UBS and the Owner Trustee and their respective Affiliates and officers, directors, employees, agents and advisors (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the each an “Special Servicer Indemnified PartiesParty”) shall be indemnified harmless from and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all liabilities, claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costscosts of counsel, judgments judgments, and any other costs, liabilities, fees and expenses (collectively, the “Special Servicer LossesCosts”) that may be imposed on, incurred in connection with any legal action by or assessed against such Indemnified Party relating to (i) this Agreementor arising out of a third party claim related to the failure of the TRS Servicer, any GMAC Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates Corporation as sub servicer or any exercise of any right under this Agreement reasonably requiring other sub servicer to perform its duties and service the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer Mortgage Loans in accordance strict compliance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) If an Indemnified Party shall be paid out of collections on, and other proceeds ofso request, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special TRS Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust claim. The TRS Servicer shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all expenses in connection therewithwith any such claim, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them UBS in respect of such claim. UBS promptly shall reimburse the TRS Servicer for all amounts advanced by it pursuant to the preceding sentence except when the claim is in any way related to the failure of the TRS Servicer to service and administer the Mortgage Loans or otherwise to perform its obligations in strict compliance with the terms of this Agreement. The Master TRS Servicer shall promptly make from the Collection Account (and, if also reimburse an Indemnified Party as and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified when billed by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and such Indemnified Party for all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special ServicerIndemnified Party’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees costs and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the enforcement or the preservation of such Indemnified Party’s rights against the TRS Servicer under this Agreement, including without limitation the reasonable fees and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementcounsel.
Appears in 1 contract
Samples: TRS Servicing Agreement (MortgageIT Holdings, Inc.)
Indemnification; Third Party Claims. (a) The Special Notwithstanding anything herein to the contrary, the Servicer agrees to indemnify the Owner and any Affiliateits present and former officers, directordirectors, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified employees and held agents and hold them harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all actual claims, losses, penalties, fines, forfeitures, legal fees (including legal fees incurred in connection with the enforcement of the Servicer’s indemnification obligation under this Section 8.01) and related costs, judgments judgments, and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred that the Owner or such Persons may sustain in connection with any legal action relating to way which arise from (i) this Agreement, any the failure of the Servicer to perform its duties and service the Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or Loans in compliance with the Certificates or any exercise terms of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision material breach of any representation, warranty, covenant or agreement made by the Special Servicer hereunder. The Servicer shall not be liable, and assumes no liability, to any Mortgagor under any of the Mortgage Loans or Mortgaged Properties arising out of any information included act or omission to act of any servicer, sub-servicer, owner, holder or originator of the Mortgage Loans or Mortgaged Properties before the Servicing Transfer Date under or as a result of this Agreement and the transactions contemplated hereby, and, to the maximum extent permitted by applicable law, the Servicer expressly disclaims such liability. Furthermore, the Servicer shall not be liable to the Owner with respect to action taken by the Special Servicer Servicer, or for refraining from taking any action, with respect to any Mortgage Loan or REO Property at and in conformity with the report required to be provided by direction of the Special Servicer pursuant to Owner (for this Agreementpurpose, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (BAgreement are directions of the Owner) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, for liability caused by or resulting from a delay occasioned by the Owner’s objection to a proposal by the Servicer hereunder, or for any liability caused by or resulting from the Owner’s breach on the part of that party of a representation or warranty made in this Agreement; herein or (D) for any liability incurred in connection with any legal action or claim against by reason of the party seeking indemnification, resulting from any Owner’s willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations acting or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan refraining from acting or any B Note. In the case failure of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24performance.
(b) The Special Servicer Owner agrees to indemnify the TrustServicer and the Purchaser and their respective present and former officers, directors, employees and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, agents and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees (including legal fees incurred in connection with the enforcement of the Owner’s indemnification obligation under this Section 8.01) and related costs, judgments, and any other costs, liabilities, fees and expenses that the Servicer, the Purchaser or such person Persons may sustain arising caused by or resulting from (i) any legal action relating to this Agreement, (ii) any act or as a result omission of the Owner or any employee, agent or representative authorized to act or acting on the Owner’s behalf under this Agreement or with respect to the Mortgage Loans, (iii) any actions or omissions in respect of any Mortgage Loan or REO Property of any prior servicer, sub-servicer, owner or originator of a Mortgage Loan or REO Property, (iv) the Servicer’s taking of any action, or refraining from the taking of any action, with respect to any Mortgage Loan or REO Property in conformity with this Agreement or at the direction of the Owner, its employees, or agents, (v) the Waiver, to the extent that Servicer does not obtain full reimbursement from the Custodial Account and (vi) any Environmental Liability; provided, however, the indemnity for Environmental Liability shall not be effective with respect to any liability directly and solely caused by the Servicer that would otherwise be imposed by reason of the Servicer’s willful misfeasance, misfeasance or bad faith or negligence in the performance of, or failure to perform, its duties under this Agreement.
(c) Promptly after receipt by an indemnified party under this Section 8.01 of duties hereunder or by reason notice of negligent disregard the commencement of obligations and duties hereunder by the Special Servicer. The Trusteeany action, the Depositorsuch indemnified party will, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim in respect thereof is to be made by a third against the indemnifying party with respect under this Section 8.01, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability which it may have to any indemnified party under this Agreement Section 8.01, except to the extent that it has been prejudiced in any material respect, or from any liability which it may have, otherwise than under this Section 8.01. In case any such action is brought against any indemnified party and it notifies the Specially Serviced Mortgage Loans entitling indemnifying party of the Trust or the Trusteecommencement thereof, the Depositorindemnifying party will be entitled to participate therein, and to the Certificate Administrator, extent that it may elect by written notice delivered to the Custodian, indemnified party promptly after receiving the Trust Advisor or the Master Servicer, as the case may beaforesaid notice from such indemnified party, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (thereof, with counsel reasonably satisfactory to such indemnified party; provided that if the Trustee, defendants in any such action include both the Depositor, indemnified party and the Certificate Administrator, indemnifying party and the Custodian, the Trust Advisor indemnified party or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which parties shall have reasonably concluded that there may be entered against legal defenses available to it or them and/or other indemnified parties which are different from or additional to those available to the indemnifying party (or, if the Servicer is the indemnified party, the Servicer and the Owner shall have reasonably agreed that there may be such legal defenses available to the Servicer which are different from the legal defenses available to the Owner), the indemnified party or 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 party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party for expenses incurred by the indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with one local counsel, if applicable), approved by the Owner in the case of subsection (a), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust clause (i) or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence(iii).
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Interim Servicing and Servicing Rights Purchase Agreement (First NLC Financial Services Inc)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Trust, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and "control persons," as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the “Special each a "Servicer Indemnified Parties”Party") shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party's gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(b) hereof for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such failure. In addition to the foregoing, the Servicer shall indemnify the Note Agent and hold it harmless against any amounts the Notes Agent is obligated to pay pursuant to any Blocked Account Agreement to the financial institution at which either of the Trust Accounts is maintained to the extent such amounts are incurred or relate to a period following the delivery of a Termination Notice (as defined under such Blocked Account Agreement) under such Blocked Account Agreement.
(b) None of the Loan Originator, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originator, the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerLoan Originator, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Loan Originator, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicerofficers, as the case employees, agents may be) rely in good faith on any document of any kind which, prima facie, is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Loan Originator agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement Depositor and the termination Noteholders, as the ultimate assignees from the Depositor (each an "Originator Indemnified Party," together with the Servicer Indemnified Parties, the "Indemnified Parties"), from and against any loss, liability, expense, damage, claim or resignation injury arising out of or based on (i) any breach of any representation, warranty or covenant of the Special ServicerLoan Originator, the Certificate AdministratorServicer or their Affiliates, in any Basic Document, including, without limitation, the Custodianorigination or prior servicing of the Loans by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Loan Originator, the Trust AdvisorServicer or their Affiliates, and (ii) any untrue statement by the Loan Originator, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share its Affiliates of any material fact or any such Person's failure to state a material fact necessary to make such statements not misleading with respect to any such Person's statements contained in any Basic Document, including, without limitation, any Officer's Certificate, statement, report or other document or information prepared by any such Person and all claimsfurnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, losseswithout limitation, penaltiessuch written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Loans or any such Person's business, finesoperations or financial condition, forfeitures, legal including reasonable attorneys' fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage actual or threatened action, proceeding or claim; provided that the Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Originator shall not indemnify an Originator Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s injury is due to either an Originator Indemnified Party's willful misfeasance, bad faith or negligence or by reason of an Originator Indemnified Party's reckless disregard of its obligations hereunder; provided, further, that the Loan Originator shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable to an Originator Indemnified Party for any losses in respect of the performance of its duties the Loans, the creditworthiness of the Borrowers under the Loans, changes in the market value of the Loans or other similar investment risks associated with the Loans arising from a breach of any representation or warranty set forth in Exhibit E hereto, a remedy for the breach of which is provided in Section 3.06 hereof. The provisions of this indemnity shall run directly to and be enforceable by an Originator Indemnified Party subject to the limitations hereof.
(d) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a "Third Party Claim"), such Indemnified Party shall notify the related Non-Serviced Mortgage Loan Pooling indemnifying parties (each an "Indemnifying Party") in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party's receipt thereof, copies of all notices and Servicing Agreementdocuments (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any claim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, while maintaining control over its own defense, the Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, and the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of such terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request; provided, however, that the Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party.
Appears in 1 contract
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originator, the Owner Trustee, the Trust, the Depositor, the Owner Trustee and any Affiliatethe Certificateholders, directortheir respective -130- 138 officers, officerdirectors, employeeemployees, member, manager or agent agents and "control persons," as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the “Special Servicer each an "Indemnified Parties”Party") shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the willful misfeasanceServicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement; provided, bad faith or negligence however, that if the Servicer is not liable pursuant to the provisions of Section 14.01(d) hereof for its failure to perform its duties and service the Loans in compliance with the performance terms of duties hereunder or by reason this Agreement, then the provisions of negligent disregard of obligations this Section 14.01 shall have no force and duties hereunder by the Special Servicer. effect with respect to such failure.
(b) The TrusteeLoan Originator, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Owner Trustee or the Master Servicer Certificateholders, as the case may be, shall immediately promptly notify the Special Servicer if a claim is made by a third party with respect to a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the Specially Serviced Mortgage failure of the Servicer to perform its duties and service the Loans entitling in compliance with the Trust or terms of this Agreement. The Servicer shall promptly notify the Trustee, Owner Trustee and the Depositor of any claim of which it has been notified pursuant to this Section 14.01 by a Person other than the Depositor, and, in any event, shall promptly notify the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, Depositor of its intended course of action with respect to indemnification hereunder, whereupon the Special any claim.
(c) The Servicer shall be entitled to participate in and, upon notice to the Indemnified Party, assume the defense of any such action or claim (in reasonable cooperation with, and with the reasonable cooperation of, the Indemnified Party. The Indemnified Party will have the right to employ its own counsel reasonably satisfactory in any such action in addition to the counsel of the Servicer, but the fees and expenses of such counsel will be at the expense of such Indemnified Party, unless (i) the employment of counsel by the Indemnified Party at its expense has been authorized in writing by the Servicer, (ii) the Servicer has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Servicer and one or more Indemnified Parties, and the Indemnified Parties shall have been advised by counsel that there may be one or more legal defenses available to them which are different from or additional to those available to the Servicer. The Servicer shall not be liable for any settlement of any such claim or action unless the Servicer shall have consented thereto or be in default on its obligations hereunder. Any failure by an Indemnified Party to comply with the provisions of this Section 14.01 shall relieve the Servicer of liability only if such failure is materially prejudicial to the defense of the Servicer of such claim or action and then only to the extent of such prejudice.
(d) None of the Loan Originator, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Trust, the Owner Trustee or the Certificateholders for any action -131- 139 taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originator, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliateof their respective Affiliates, directordirectors, officerofficers, employeeemployees, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless agents against the Trust’s pro rata share remedies provided herein for the breach of any and all claimswarranties, lossesrepresentations or covenants made herein, penalties, fines, forfeitures, legal fees and related costs, judgments and or against any other costs, liabilities, fees and expenses incurred in connection with any legal action relating expense or liability specifically required to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any be borne by such losses allocable party without right of reimbursement pursuant to the related Non-Serviced Companion Loans)terms hereof, reasonably requiring the use of counsel or the incurring of expenses other than against any losses incurred expense or liability which would otherwise be imposed by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its the respective duties under of the related Non-Serviced Mortgage Servicer, the Depositor or the Loan Pooling Originator, as the case may be. The Loan Originator, the Depositor, the Servicer and Servicing Agreementany of their respective Affiliates, directors, officers, employees, agents may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder.
Appears in 1 contract
Indemnification; Third Party Claims. (a) The Special Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent to hold each of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage LoansDepositor, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer Certificate Insurer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them Certificateholder harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate AdministratorTrustee, the Custodian, Certificate Insurer and any Certificateholder may sustain in any way related to the Trust Advisor or failure of the Master Servicer to perform its duties and service the Mortgage Loans in compliance with the terms of this Agreement. Each indemnified party and the Servicer shall immediately notify the Special Servicer other indemnified parties if a claim is made by a third party with respect to this Agreement or Agreement, and the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including reasonable counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Depositor, the Servicer, the Trustee, the Certificate Insurer and/or a Certificateholder in respect of such claim. Any The Trustee shall reimburse the Servicer in accordance with Section 5.08 hereof for all amounts advanced by it pursuant to the preceding sentence except when the claim relates directly to the failure of the Servicer to so notify service and administer the Special Servicer Mortgages in compliance with the terms of this Agreement; provided, that the Servicer's indemnity hereunder shall not affect be in any rights manner conditioned on the Trust availability of funds for such reimbursement.
(b) The Trustee may, if necessary, reimburse the Servicer from amounts otherwise distributable on the Class R Certificates for all amounts advanced by it pursuant to Section 4.04(a)(ii) of the Loan Sale Agreement, except when the claim relates directly to the failure of the Servicer, if it is, or the Trusteeis an Affiliate of, the Depositor, to perform its obligations to service and administer the Certificate AdministratorMortgages in compliance with the terms of the Loan Sale Agreement, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct failure of the Special Servicer was not culpable or such indemnifying party was found Depositor to not have acted perform its duties in compliance with willful misfeasance, bad faith or negligencethe terms of this Agreement.
(c) The indemnification provided in Sections 9.24(aTrustee shall reimburse the Depositor from amounts otherwise distributable on the Class R Certificates for all amounts advanced by the Depositor pursuant to the second sentence of Section 4.04(a)(ii) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, Loan Sale Agreement except when the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable relevant claim relates directly to the related Non-Serviced Companion Loans), reasonably requiring failure of the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Depositor to perform its duties under in compliance with the related Non-Serviced Mortgage terms of the Loan Pooling and Servicing Sale Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Indemnification; Third Party Claims. (a) The Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless by the Trust, out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any the A/B Notes Mortgage Loan (including REO Loans), if and to the extent that the matter relates to such A/B Mortgage Loan) against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative Trustee or the Master Servicer pursuant to any provision of this Agreement, Agreement in each case and the Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees, members, managers employees and agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeSpecial Servicer) and the Trust shall pay, from amounts on deposit in the Collection Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out termination of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee the termination or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result resignation of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer Trust shall be reimbursed by the party so paid or at the direction of which a payment was madeSpecial Servicer, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive . Notwithstanding the termination of this Agreement and the termination foregoing, if such loss, liability or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-expense relates specifically to a particular Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Pari Passu Mortgage Loan (or another Mortgage Loan included in the Trust) or a particular Serviced Companion Mortgage Loan, then such indemnification shall be paid out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan, other Mortgage Loan or Serviced Companion Mortgage Loan, as applicable. If such loss, liability or expense relates to an A/B Mortgage Loan but excluding any such losses allocable does not relate to the related Non-Serviced Companion Loans)A Note and does not relate primarily to the administration of the Trust or any REMIC formed hereunder or to any determination respecting 235 the amount, reasonably requiring payment or avoidance of any tax under the use REMIC provisions of counsel the Code or the incurring of expenses other than any losses incurred by reason actual payment of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasanceREMIC tax or expense, bad faith or negligence in the performance then such indemnification shall be paid first out of its duties under collections on, and other proceeds of, the related Non-Serviced Mortgage Loan Pooling B Note until such point as such indemnification is paid in full or a Final Recovery Determination has been made with respect to such B Note and Servicing Agreementonly then out of collections on, and other proceeds of, the related A Note.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Hq8)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent (so long as it is an Affiliate of the Special Servicer Originator or the Buyer) shall indemnify the Originator, the Buyer, the Collateral Custodian, the Agent and each other member of the Lender Group, their respective officers, directors, employees, agents and “control persons,” as such term is used under the Securities Act and under the Exchange Act (the each a “Special Servicer Indemnified PartiesParty”) shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer’s representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Transferred Notes Receivable in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party’s fraud, gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(b) hereof for its failure to perform its duties and service the Transferred Notes Receivable in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such failure; provided, further that (i) no successor Servicer shall be liable for the breaches of representations or warranties or covenants, or actions or omissions, of a predecessor Servicer; and (ii) the Servicer shall not be so required to indemnify a Servicer Indemnified Party or to otherwise be liable to an Servicer Indemnified Party for any losses in respect of the non-performance of the Transferred Notes Receivable, the creditworthiness of the Obligors with respect to the Transferred Notes Receivable, changes in the market value of the Transferred Note Receivable or other similar investment risks associated with the Transferred Note Receivable if the effect of such indemnity would be to provide credit recourse to the Originator for the performance of the Transferred Note Receivable.
(b) None of the Originator or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Collateral Custodian, the Buyer, the Agent or any member of the Lender Group for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Originator, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Servicer or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerOriginator, as the case may be. The Originator, to indemnification hereunderthe Servicer and any of their respective Affiliates, whereupon the Special Servicer shall assume the defense directors, officers, employees, agents may rely in good faith on any document of any such claim (with counsel reasonably satisfactory to the Trusteekind which, the Depositorprima facie, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Horizon agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Collateral Custodian, the Trust AdvisorBuyer, the Master Agent, and the Lender Group (each a “Horizon Indemnified Party,” together with the Servicer Indemnified Parties, the “Indemnified Parties”), from and against any loss, liability, expense, damage, claim or injury arising out of or based on (i) any breach of any representation, warranty or covenant of Horizon in any Loan Document, including, without limitation, by reason of any acts, omissions, or alleged acts or omissions arising out of activities of Horizon in its capacity as the Originator or the Trustee.
Servicer, and (dii) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified untrue statement by the Trust and held harmless against the Trust’s pro rata share Horizon of any material fact, including, without limitation, any Officer’s Certificate, statement, report or other document or information prepared by any such Person and all claimsfurnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, losseswithout limitation, penaltiessuch written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Transferred Notes Receivable or any such Person’s business, finesoperations or financial condition, forfeitures, legal including reasonable attorneys’ fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreementactual or threatened action, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable proceeding or claim; provided that Horizon shall not indemnify a Horizon Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicerinjury is due to either such Horizon Indemnified Party’s willful misfeasance, bad faith or gross negligence or by reason of such Horizon Indemnified Party’s reckless disregard of its obligations hereunder; provided, further, that Horizon shall not be so required to indemnify a Horizon Indemnified Party or to otherwise be liable to a Horizon Indemnified Party for any losses in respect of the non-performance of the Transferred Notes Receivable, the creditworthiness of the Obligors with respect to the Transferred Notes Receivable, changes in the market value of the Transferred Notes Receivable or other similar investment risks associated with the Transferred Notes Receivable if the effect of such indemnity would be to provide credit recourse to Horizon for the performance of its duties under the Transferred Notes Receivable. The provisions of this indemnity shall run directly to and be enforceable by a Horizon Indemnified Party subject to the limitations hereof.
(d) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a “Third Party Claim”), such Indemnified Party shall notify the related Non-Serviced Mortgage Loan Pooling indemnifying parties (each an “Indemnifying Party”) in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party’s receipt thereof, copies of all notices and Servicing Agreementdocuments (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Agent and the Indemnified Party (if other than the Agent) of any claim of which it has been notified and shall promptly notify the Agent and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, while maintaining control over its own defense, the Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, and the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of such terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request; provided, however, that the Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party; provided, further, that the Indemnifying Party shall have the right to reject the selection of counsel by the Indemnified Party if the Indemnifying Party reasonably determines that such counsel is inappropriate in light of the nature of the claim or litigation and shall have the right to assume the defense of such claim or litigation if the Indemnifying Party determines that the manner of defense of such claim or litigation is unreasonable.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Horizon Technology Finance Corp)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Originator, the Owner Trustee, the Issuer, the Paying Agent, the Depositor, the Indenture Trustee, the Collateral Custodian, the Backup Servicer and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent of agents and “control persons,” as such term is used under the Special Servicer Securities Act and under the Exchange Act (the each a “Special Servicer Indemnified PartiesParty”) shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of any of the Servicer’s representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Transferred Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party’s fraud, gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(b) hereof for its failure to perform its duties and service the Transferred Loans in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such person may sustain failure; provided, further that (i) no successor Servicer shall be liable for the actions or omissions of a predecessor Servicer; and (ii) the Servicer shall not be so required to indemnify a Servicer Indemnified Party or to otherwise be liable to an Servicer Indemnified Party for any losses in respect of the non-performance of the Transferred Loans, the creditworthiness of the Obligors with respect to the Transferred Loans, changes in the market value of the Transferred Loans or other similar investment risks associated with the Transferred Loans arising from a breach of any representation or as a result warranty set forth in Section 3.03 hereto if the effect of such indemnity would be to provide credit recourse to the Originator for the performance of the willful Transferred Loans.
(b) None of the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerOriginator, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Originator, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicerofficers, as the case employees, agents may be) rely in good faith on any document of any kind which, prima facie, is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Originator agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement Depositor, the Indenture Trustee and the termination Noteholders, as the ultimate assignees from the Depositor (each an “Originator Indemnified Party,” together with the Servicer Indemnified Parties, the “Indemnified Parties”), from and against any loss, liability, expense, damage, claim or resignation injury arising out of or based on (i) any breach of any representation, warranty or covenant of the Special ServicerOriginator, the Certificate AdministratorServicer or their Affiliates, in any Basic Document, including, without limitation, by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Originator, the CustodianServicer or their Affiliates, and (ii) any untrue statement by the Originator, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share its Affiliates of any material fact, including, without limitation, any Officer’s Certificate, statement, report or other document or information prepared by any such Person and all claimsfurnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, losseswithout limitation, penaltiessuch written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Transferred Loans or any such Person’s business, finesoperations or financial condition, forfeitures, legal including reasonable attorneys’ fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreementactual or threatened action, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable proceeding or claim; provided that the Originator shall not indemnify an Originator Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicerinjury is due to either an Originator Indemnified Party’s willful misfeasance, bad faith or negligence or by reason of an Originator Indemnified Party’s reckless disregard of its obligations hereunder; provided, further, that the Originator shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable to an Originator Indemnified Party for any losses in respect of the non-performance of the Transferred Loans, the creditworthiness of the Obligors with respect to the Transferred Loans, changes in the market value of the Transferred Loans or other similar investment risks associated with the Transferred Loans arising from a breach of any representation or warranty set forth in Section 3.03 hereto if the effect of such indemnity would be to provide credit recourse to the Originator for the performance of its duties under the Transferred Loans. The provisions of this indemnity shall run directly to and be enforceable by an Originator Indemnified Party subject to the limitations hereof.
(d) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a “Third Party Claim”), such Indemnified Party shall notify the related Non-Serviced Mortgage Loan Pooling indemnifying parties (each an “Indemnifying Party”) in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party’s receipt thereof, copies of all notices and Servicing Agreementdocuments (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any claim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, while maintaining control over its own defense, the Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, and the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of such terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request; provided, however, that the Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party; provided, further, that the Indemnifying Party shall have the right to reject the selection of counsel by the Indemnified Party if the Indemnifying Party reasonably determines that such counsel is inappropriate in light of the nature of the claim or litigation and shall have the right to assume the defense of such claim or litigation if the Indemnifying Party determines that the manner of defense of such claim or litigation is unreasonable.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Indemnification; Third Party Claims. (a) The Special Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent of hold the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Indenture Trustee, the Controlling Class Representative or Owner Trustee, the Master Servicer pursuant to any provision of this AgreementIssuer, and the Special Servicer Note Insurer and each of its Noteholder (and their respective Affiliates, directors, officers, employees, members, managers employees and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ feesagents) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasanceIssuer, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Owner Trustee, the DepositorIssuer, the Certificate AdministratorIndenture Trustee, the CustodianNote Insurer, any such Noteholder or any such other indemnified Person may sustain in any way related to the Trust Advisor or failure of the Master Servicer to perform its duties and service the Mortgage Loans in compliance with the terms of this Agreement. The Servicer shall immediately notify the Special Servicer Issuer, the Indenture Trustee, the Owner Trustee, the Issuer, the Note Insurer and each Noteholder if a claim is made by a third party with respect to this Agreement or Agreement, and the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume (with the consent of the Indenture Trustee) the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay advance all expenses in connection therewith, including reasonable counsel fees, and promptly advance funds to pay, discharge and satisfy any judgment or decree which may be entered against it or them the Servicer, the Issuer, the Indenture Trustee, the Owner Trustee, the Issuer, the Note Insurer, a Noteholder and/or any such other indemnified Person in respect of such claim. Any The Indenture Trustee may reimburse the Servicer from amounts otherwise distributable on the Certificates for all amounts advanced by it pursuant to the preceding sentence except when the claim relates directly to the failure of the Servicer to so notify service and administer the Special Servicer shall not affect any rights Mortgage Loans in compliance with the Trust or terms of this Agreement.
(b) The Seller agrees to indemnify and hold the Issuer, the Owner Trustee, the DepositorIndenture Trustee, the Certificate AdministratorNote Insurer and each Noteholder (and their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwiseofficers, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(cemployees and agents) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments judgments, and any other costs, liabilities, fees and expenses incurred that the Issuer, the Owner Trustee, the Indenture Trustee, the Note Insurer, any Noteholder and/or any such other indemnified person may sustain in any way related to (i) the failure of the Servicer, if it is an Affiliate thereof, or the failure of the Seller to perform their respective duties in compliance with the terms of this Agreement or (ii) any breach of the representations and warranties set forth in Sections 3.02(b)(xv) and 3.02(c)(xiv). The Seller shall immediately notify the Issuer, the Owner Trustee, the Indenture Trustee, the Note Insurer and each Noteholder if a claim is made by a third party with respect to this Agreement and the Seller shall assume (with the consent of the Indenture Trustee) the defense of any such claim and advance all expenses in connection therewith, including reasonable counsel fees, and promptly advance funds to pay, discharge and satisfy any judgment or decree which may be entered against the Servicer, the Issuer, the Owner Trustee, the Seller, the Indenture Trustee, the Note Insurer, a Noteholder and/or any such other indemnified Person in respect of such claim. The Indenture Trustee may, if necessary, reimburse the Seller from amounts otherwise distributable on the Certificates if the claim is made with any legal action relating respect to any Non-Serviced Mortgage Loan Pooling this Agreement for all amounts advanced by it pursuant to the preceding sentence, except when the claim relates directly to the failure of a Servicer, if it is, or is an Affiliate of, the Seller, to perform its obligations to service and Servicing Agreement and administer the Mortgages in compliance with the terms of this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring failure of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Seller to perform its duties under in compliance with the related Non-Serviced Mortgage Loan Pooling and Servicing terms of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Afc Mortgage Loan Asset Backed Notes Series 2000-1)
Indemnification; Third Party Claims. (ai) The Special Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent of hold harmless the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), Owner against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or resulting from the Certificates or any exercise defense of any right under this Agreement reasonably requiring claim against the use of counsel or the incurring of expenses and (ii) Owner by a third party in any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing way related to the Special failure of the Servicer by to service the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred Mortgage Loans in connection compliance with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; provided, however, the Servicer shall not be liable hereunder with respect to (A) any action or inaction taken or omitted upon the written direction or consent of the Owner, (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; any action or inaction resulting from the Owner's failure to cause any Collateral File (or portion thereof) to be released to the Servicer pursuant to Sections 2.18 or 4.2(c), or (C) incurred in connection with any legal action or claim against the party seeking indemnification, inaction resulting from any breach on the part of that party of a representation Owner's failure to comply with Section 5.1(b) or warranty made in this Agreement; Section 5.6, or (D) incurred in connection with the failure of the Owner to perform any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations under this Agreement, or duties under (E) any indirect, special or consequential damages, losses, costs or expenses incurred by Owner.
(ii) The Servicer shall notify the Owner if a claim is made by a third party with respect to this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In that the case of any Servicer determines in its good faith judgment will materially affect the Owner's interest in such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeLoans. The Special Servicer shall assume (with the written consent of the Owner) the defense of any such claim and, subject to clause (with counsel reasonably satisfactory to the Trusteeiii) and the Trust shall payof this Section 5.1, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all reasonable expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which that may be entered against it the Servicer or them the Owner in respect of such claim. The Master Servicer shall promptly make follow any written instructions received from the Collection Owner in connection with any such claim. The Servicer shall have the right to reimburse itself from the Account (andfor all expenses, if advances and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified liabilities incurred by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory whether or not the Servicer has assumed the defense thereof), except when the claim (x) is related to the Trustee, Servicer's obligations to indemnify the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.Owner pursuant hereto,
Appears in 1 contract
Samples: Servicing Agreement (Luminent Mortgage Trust 2007-1)
Indemnification; Third Party Claims. (ai) The Special Servicer agrees to indemnify and any Affiliate, director, officer, employee, member, manager or agent of hold harmless the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), Owner against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or resulting from the Certificates or any exercise defense of any right under this Agreement reasonably requiring claim against the use of counsel or the incurring of expenses and (ii) Owner by a third party in any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing way related to the Special failure of the Servicer by to service the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred Mortgage Loans in connection compliance with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; provided, however, the Servicer shall not be liable hereunder with respect to (A) any action or inaction resulting from the written direction or consent of the Owner, (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; any action or inaction resulting from the Owner’s failure to cause any Collateral File (or portion thereof) to be released to the Servicer pursuant to Sections 2.18 or 4.2(c), or (C) incurred in connection with any legal action or claim against the party seeking indemnification, inaction resulting from any breach on the part of that party of a representation Owner’s failure to comply with Section 5.1(b), Section 5.1(c) or warranty made in this Agreement; Section 5.6, or (D) any indirect, special or consequential damages, losses, costs or expenses incurred in connection by Owner.
(ii) The Servicer shall notify the Owner if a claim is made by a third party with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under respect to this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In that the case of any Servicer determines in its good faith judgment will materially affect the Owner’s interest in such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeLoans. The Special Servicer shall assume (with the written consent of the Owner) the defense of any such claim (with counsel reasonably satisfactory and, subject to the Trustee) and the Trust shall paylast sentence of this paragraph, from amounts on deposit in the Collection Account pursuant to Section 5.2, pay all reasonable expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which that may be entered against it the Servicer or them the Owner in respect of such claim. The Master Servicer shall promptly make follow any written instructions received from the Collection Owner in connection with any such claim. The Servicer shall have the right to reimburse itself from the Account for all expenses, advances and liabilities incurred by the Servicer in respect of any such claim (andwhether or not the Servicer has assumed the defense thereof), if and except when the claim (x) is related to the extent Servicer’s obligations to indemnify the Owner pursuant hereto, (y) results from the failure of the Servicer to service the Mortgage Loans in compliance with the terms of this Agreement, or (z) results from the Servicer’s willful misconduct, bad faith or negligence in performing its duties under this Agreement.
(iii) If the Owner receives service of a summons or other first legal process, the Servicer shall not be liable for any costs or expenses pursuant to the indemnity in this Section 5.1 unless the Owner provides written notice to the Servicer that describes the nature of the claim within a reasonable time after service of such summons or other first legal process upon the Owner; provided, however, that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of Owner’s failure to notify the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24paragraph shall not relieve the Servicer from any liability that the Servicer may have to the Owner otherwise than on account of this indemnity. The Servicer shall not be required to indemnify any person for any settlement of any claim effected without the Servicer’s consent, which consent shall not be unreasonably withheld.
(b) The Special Servicer agrees With respect to indemnify any Mortgage Loan, if the TrustOwner records or causes to be recorded the related Assignment of Mortgage designating the Owner as the holder of record of the Mortgage in the appropriate public recording office of the jurisdiction in which the related Mortgaged Property is located, and each other party the Owner, in its capacity as the holder of record, receives written notice of any action with respect to this Agreement and any directorthe related Mortgage or Mortgaged Property, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all the Owner shall promptly send a copy of such notice to the Servicer in accordance with Section 9.8. The Servicer shall have no liability to the Owner for claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and or any other costscosts or expenses, liabilities, fees and expenses that such person may sustain arising result from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any Owner’s failure to so notify comply with the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under provisions set forth in this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligenceparagraph.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Servicing Agreement (Zuni 2006-Oa1)
Indemnification; Third Party Claims. (a) The Each Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of the each such Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified by the Trust, and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action or claim relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B NotesLoan, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses Agreement, and (ii) any action properly taken by the such Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the such Special Servicer by the Trustee, the Controlling Class Representative Trustee or the applicable Master Servicer pursuant to any provision of this Agreement, and the such Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees, members, managers and employees or agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the such Special Servicer of any information included by the such Special Servicer in the report required to be provided by the such Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The applicable Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trusteesuch Special Servicer) and the Trust shall pay, from amounts on deposit in the Collection applicable Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (andtermination of this Agreement and the termination or resignation of such Special Servicer. Any expenses incurred or indemnification payments made by the Trust shall be reimbursed by such Special Servicer, if and to the extent a court of competent jurisdiction makes a final, non-appealable judgment that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the such Special Servicer was found to the Master Servicerhave acted with willful misfeasance, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24bad faith or negligence.
(b) The Each Special Servicer agrees to indemnify the Trust, and each other party to this Agreement the Trustee, the Depositor, the applicable Master Servicer, the Paying Agent and any directorpartner, officerrepresentative, Affiliate, member, manager, employee or director, officer, employee, agent or Controlling Person thereofof the Trustee, the Depositor and the applicable Master Servicer, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Trust or the Trustee, the Depositor, the Paying Agent or the applicable Master Servicer may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of such Special Servicer's duties hereunder or by reason of negligent disregard of such Special Servicer's obligations and duties hereunder by the such Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer shall immediately notify the such Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be, to indemnification hereunder, whereupon the such Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the such Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s 's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of such Special Servicer, the Paying Agent or the Trustee. Any expenses incurred or indemnification payments made by the such Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the such Special Servicer was not culpable of willful misfeasance, bad faith or such indemnifying negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party was is found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan initial applicable Special Servicer and any Affiliate, director, officer, employee, member, manager the Depositor expressly agree that the only information furnished by or agent on behalf of such Non-Serviced Mortgage Loan the applicable Special Servicer shall be indemnified by for inclusion in the Trust Preliminary Prospectus Supplement and held harmless against the Trust’s pro rata share of any Final Prospectus Supplement is the information set forth in the paragraph under the caption "SERVICING OF THE MORTGAGE LOANS--The Master Servicers and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicers--Special Servicer’s willful misfeasance, bad faith or negligence in " of the performance of its duties under the related Non-Serviced Mortgage Loan Pooling Preliminary Prospectus Supplement and Servicing AgreementFinal Prospectus Supplement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 IQ10)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originators, the Owner Trustee, the Trust, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and "control persons," as such term is used under the Act and
(b) None of the Special Loan Originators, the Depositor or the Servicer (the “Special Servicer Indemnified Parties”) or any of their respective Affiliates, directors, officers, employees or agents shall be indemnified and held harmless out under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of the proceeds of the Mortgage Loansany action, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating good faith pursuant to (i) this Agreement, any Mortgage Loansor for errors in judgment; provided, any Serviced Companion Loanshowever, any B Notesthat this provision shall not protect the Loan Originators, any REO Property or the Certificates Depositor, the Servicer or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its their respective Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from against the Trust remedies provided herein for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer breach of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreementwarranties, in each case other than representations or covenants made herein, or against any loss, expense or liability or expense: (A) specifically required to be borne by the such party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections onhereof, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from expense or as a result liability which would otherwise be imposed by reason of the willful misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerLoan Originators, as the case may be. The Loan Originators, the Depositor, the Servicer and any of their respective Affiliates, directors, officers, employees, agents may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder.
(c) Each Loan Originator agrees to indemnify and hold harmless the Depositor and the Noteholders, as the ultimate assignees from the Depositor (each an "Originator Indemnified Party," together with the Servicer Indemnified Parties, the "Indemnified Parties"), from and against any loss, liability, expense, damage, claim or injury arising out of or based on (i) any breach of any representation, warranty or covenant of the Loan Originators, the Servicer or their Affiliates, in any Basic Document, including, without limitation, the origination or prior servicing of the Loans by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Loan Originators, the Servicer or their Affiliates, and (ii) any untrue statement by the Loan Originators, the Servicer or its Affiliates of any material fact or any such Person's failure to state a material fact necessary to make such statements not misleading with respect to any such Person's statements contained in any Basic Document, including, without limitation, any Officer's Certificate, statement, report or other document or information prepared by any such Person and furnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby including, without limitation, such written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Loans or any such Person's business, operations or financial condition, including reasonable attorneys' fees and other costs or
(d) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a "Third Party Claim"), such Indemnified Party shall notify the related indemnifying parties (each an "Indemnifying Party") in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any claim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, (a) the related Indemnifying Party will be entitled to participate in the defense thereof and, (b) if it so chooses, to indemnification hereunderassume the defense thereof with counsel selected by the Indemnifying Party, whereupon provided that in connection with such assumption (i) such counsel is not reasonably objected to by the Special Servicer Indemnified Party and (ii) the Indemnifying Party first admits in writing its liability to indemnify the Indemnified Party with respect to all elements of such claim in full. Should the related Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party elects to assume the defense of a Third Party Claim, the Indemnified Party will (i) cooperate in all reasonable respects with the Indemnifying Party in connection with such defense and (ii) not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party' prior written consent, as the case may be. If the Indemnifying Party shall assume the defense of any Third Party Claim, the Indemnified Party shall be entitled to participate in (but not control) such defense with its own counsel at its own expense. If the Indemnifying Party does not assume the defense of any such Third Party Claim, the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim (with counsel reasonably satisfactory or litigation after giving notice to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.the
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Indemnification; Third Party Claims. (a) The Special Master Servicer and any Affiliate, director, officer, employee, member, manager employee or agent of the Special Master Servicer (the “Special "Master Servicer Indemnified Parties”") shall be indemnified and held harmless by the Trust out of the collections on, and other proceeds of of, the Mortgage Loans, any Serviced the RSA Companion Loans Loan and any B Notes (including REO Loans)Notes, as provided in the following paragraph, against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special collectively, "Master Servicer Losses”") incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced the RSA Companion LoansLoan, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by reason of the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any Master Servicer's willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or dutieshereunder. Except as provided in the following sentence, indemnification for Special Master Servicer Losses described in the preceding paragraph (including in the case of such Special Master Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool formed hereunder or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions provisions of the Code or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced the RSA Companion Loan or any B Note. In the case of any such Special Master Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool formed hereunder or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
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Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc Trust 2003-Top 11)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating Subject to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the TrusteeSection 7.03, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the TrustOwner and its present and former officers, directors, employees and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, agents and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees (including legal fees incurred in connection with the enforcement of the Servicer’s indemnification obligation under this Section 7.01) and related costs, judgments, and any other costs, liabilities, fees and expenses that the Owner or such person Persons may sustain arising in any way which arise from or as a result (i) the failure of the willful misfeasanceServicer to perform its duties and service the Mortgage Loans in strict compliance with the terms of this Agreement or (ii) the breach of any representation, bad faith warranty, covenant or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder agreement made by the Special ServicerServicer hereunder. The TrusteeServicer shall not be liable, and assumes no liability, arising out of any act or omission to act of any servicer or sub-servicer (other than the Servicer), owner or originator of the Mortgage Loans or REO Properties before the related Servicing Transfer Date. Furthermore, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify not be liable to the Special Servicer if a claim is made by a third party Owner with respect to this Agreement or action taken by the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as or for refraining from taking any action, with respect to any Mortgage Loan or REO Property at and in conformity with the case may be, written direction of the Owner or for liability caused by or resulting from a delay occasioned by the Owner’s objection to indemnification a proposal by the Servicer hereunder, whereupon or for any liability caused by or resulting from the Special Servicer shall assume the defense Owner’s breach of a representation or warranty herein or for any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses liability incurred by reason of any Non-Serviced Mortgage Loan Special Servicerthe Owner’s willful misfeasance, bad faith or negligence in the performance acting or refraining from acting or any failure of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementperformance.
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Indemnification; Third Party Claims. (a) The Special Seller agrees to indemnify and hold harmless the Purchaser, the Master Servicer and any Affiliatesuccessor servicer and their respective officers, directordirectors, officer, employee, member, manager or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified agents and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans affiliates from and any B Notes (including REO Loans), against any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and related costs(including, judgments and any other costswithout limitation, liabilities, legal fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by enforcement of the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable Seller’s indemnification obligation under this Agreement; (CSubsection 12.01) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Purchaser may sustain in any way related to (i) any act or omission on the part of the Seller or any other person or entity in the origination, receiving, processing, funding or servicing of any Mortgage Loan prior to the related Servicing Transfer Date or otherwise arising from or as a result the transfer of servicing of the willful misfeasanceMortgage Loans provided for in this Agreement, bad faith (ii) any assertion based on, grounded upon or negligence resulting from a breach of any of the Seller’s representations and warranties contained herein, (iii) the Seller’s inability to effect or cause the transfer of the servicing to a successor servicer pursuant to Subsection 14.01 and (iv) the failure of the Seller to perform in any way its duties and service the performance Mortgage Loans in strict compliance with the terms of duties hereunder this Agreement or by reason of negligent disregard of otherwise comply with its obligations and duties hereunder by the Special Servicer. covenants under this Agreement.
(b) The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer Seller shall immediately notify the Special Purchaser and the Master Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling Loans, and the Trust or Seller shall assume (with the Trustee, written consent of the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Purchaser or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume ) the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all reasonable expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify If the Special Servicer shall not affect any rights Seller has assumed the Trust or the Trusteedefense, the Depositor, Seller shall provide the Certificate Administrator, the Custodian, the Trust Advisor Purchaser or the Master Servicer may have with a written report of all expenses and advances incurred by the Seller pursuant to indemnification under this Subsection 12.01 and the Purchaser or the Master Servicer shall promptly reimburse the Seller for all amounts advanced by it pursuant to the preceding sentence except when the claim in any way relates to the failure of the Seller to service the Mortgage Loans in accordance with the terms of this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted otherwise comply with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) its obligations and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and covenants under this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Appears in 1 contract
Samples: Mortgage Loan Sale and Interim Servicing Agreement (Jpmac 2006-Fre2)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Originator, the Owner Trustee, the Issuer, the Paying Agent, the Depositor, the Indenture Trustee, the Collateral Custodian, the Backup Servicer and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent of agents and "control persons," as such term is used under the Special Servicer Securities Act and under the Exchange Act (the “Special each a "Servicer Indemnified Parties”Party") shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Transferred Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party's fraud, gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(b) hereof for its failure to perform its duties and service the Transferred Loans in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such person may sustain failure; provided, further that (i) no successor Servicer shall be liable for the actions or omissions of a predecessor Servicer; and (ii) the Servicer shall not be so required to indemnify a Servicer Indemnified Party or to otherwise be liable to an Servicer Indemnified Party for any losses in respect of the non-performance of the Transferred Loans, the creditworthiness of the Obligors with respect to the Transferred Loans, changes in the market value of the Transferred Loans or other similar investment risks associated with the Transferred Loans arising from a breach of any representation or as a result warranty set forth in Section 3.03 hereto if the effect of such indemnity would be to provide credit recourse to the Originator for the performance of the willful Transferred Loans.
(b) None of the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerOriginator, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Originator, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicerofficers, as the case employees, agents may berely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder.
(c) The Originator agrees to indemnify and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, hold harmless the Depositor, the Certificate AdministratorIndenture Trustee and the Noteholders, as the ultimate assignees from the Depositor (each an "Originator Indemnified Party," together with the Servicer Indemnified Parties, the Custodian"Indemnified Parties"), from and against any loss, liability, expense, damage, claim or injury arising out of or based on (i) any breach of any representation, warranty or covenant of the Originator, the Trust Advisor Servicer or their Affiliates, in any Basic Document, including, without limitation, by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Master Originator, the Servicer or their Affiliates, and (ii) any untrue statement by the Originator, the Servicer or its Affiliates of any material fact, including, without limitation, any Officer's Certificate, statement, report or other document or information prepared by any such Person and furnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby and not corrected prior to completion of the relevant transaction including, without limitation, such written information as may have been and may be furnished in connection with any due diligence investigation with respect to indemnification under this Agreement the Transferred Loans or otherwiseany such Person's business, unless operations or financial condition, including reasonable attorneys' fees and other costs or expenses incurred in connection with the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred any actual or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid threatened action, proceeding or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment claim; provided that the conduct of Originator shall not indemnify an Originator Indemnified Party to the Special Servicer was not culpable extent such loss, liability, expense, damage or such indemnifying party was found injury is due to not have acted with either an Originator Indemnified Party's willful misfeasance, bad faith or negligence.
(c) gross negligence or by reason of an Originator Indemnified Party's reckless disregard of its obligations hereunder; provided, further, that the Originator shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable to an Originator Indemnified Party for any losses in respect of the non-performance of the Transferred Loans, the creditworthiness of the Obligors with respect to the Transferred Loans, changes in the market value of the Transferred Loans or other similar investment risks associated with the Transferred Loans arising from a breach of any representation or warranty set forth in Section 3.03 hereto if the effect of such indemnity would be to provide credit recourse to the Originator for the performance of the Transferred Loans. The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination provisions of this Agreement indemnity shall run directly to and be enforceable by an Originator Indemnified Party subject to the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trusteelimitations hereof.
(d) Any Non-Serviced Mortgage Loan Special Servicer With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a "Third Party Claim"), such Indemnified Party shall notify the related indemnifying parties (each an "Indemnifying Party") in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any Affiliateclaim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, directorwhile maintaining control over its own defense, officerthe Indemnified Party shall cooperate and consult fully with the Indemnifying Party in preparing such defense, employeeand the Indemnified Party may defend the same in such manner as it may deem appropriate, member, manager including settling such claim or agent litigation after giving notice to the Indemnifying Party of such Non-Serviced Mortgage Loan Special Servicer terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request; provided, however, that the Indemnified Party may not settle any claim or litigation without the consent of the Indemnifying Party; provided, further, that the Indemnifying Party shall be indemnified have the right to reject the selection of counsel by the Trust Indemnified Party if the Indemnifying Party reasonably determines that such counsel is inappropriate in light of the nature of the claim or litigation and held harmless against shall have the Trust’s pro rata share right to assume the defense of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to claim or litigation if the related Non-Serviced Companion Loans), reasonably requiring Indemnifying Party determines that the use manner of counsel defense of such claim or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreementlitigation is unreasonable.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Indemnification; Third Party Claims. (a) The Special Servicer and any Affiliate, director, officer, employee, member, manager or agent Each of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee Depositor, and the Certificate Administrator as required to be made to Transferor (solely for the Special Servicer pursuant to purpose of this Section 9.24.
(b5.21, the "Indemnifying Parties") The Special Servicer agrees to indemnify and to hold each of the TrustMaster Servicer, the Depositor, the Trustee, the Transferor, the Certificate Insurer and each other party to Certificateholder (solely for the purpose of this Agreement and any directorSection 5.21, officer, member, manager, employee or agent or Controlling Person thereof, and hold them the "Indemnified Parties") harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may the Indemnified Parties may, respectively, sustain arising from in any way related to the failure of any one or as a result more of the willful misfeasance, bad faith or negligence Indemnifying Parties to perform its respective duties in compliance with the performance terms of duties hereunder or by reason of negligent disregard of obligations this Agreement. Each Indemnified Party and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately promptly notify the Special Servicer other Indemnified Parties if a claim is made by a third party with respect to this Agreement or Agreement, and the Specially Serviced Mortgage Loans entitling Master Servicer shall with the Trust or the Trustee, the Depositor, consent of the Certificate AdministratorInsurer, the Custodiansuch consent not to be unreasonably withheld, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including reasonable counsel feesfees approved by the Certificate Insurer, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them the Indemnified Parties in respect of such claim. Any failure to so notify The Trustee shall, out of the Special Servicer shall not affect any rights assets of the Trust or the TrusteeFund, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or reimburse the Master Servicer may have in accordance with Section 5.14 hereof for all amounts advanced by it pursuant to indemnification under the preceding sentence except when the claim relates directly to the failure of the Master Servicer to service and administer the Mortgages in compliance with the terms of this Agreement or otherwiseAgreement; provided, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct Master Servicer's indemnity hereunder shall not be in any manner conditioned on the availability of the Special Servicer was not culpable or funds for such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencereimbursement.
(cb) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive Trustee, at the termination written request of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or (which the Trustee.
(dTrustee may conclusively rely on) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified reimburse the Transferor from amounts otherwise distributable on the Class R Certificates for all amounts advanced by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Transferor pursuant to the related Non-Serviced Companion Loans), reasonably requiring second sentence of Section 4.3 of the use Purchase and Sale Agreement except when the relevant claim relates directly to the failure of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence in the performance of Transferor to perform its duties under in compliance with the related Non-Serviced Mortgage Loan Pooling terms of the Purchase and Servicing Sale Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Indemnification; Third Party Claims. (a) The Special Servicer Each Custodian agrees to indemnify and any Affiliatehold harmless the Depositor and each Person, directorif any, officer, employee, member, manager or agent who “controls” the Depositor within the meaning of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified Securities Act and held harmless out of the proceeds of the Mortgage Loansits officers, any Serviced Companion Loans directors and any B Notes (including REO Loans), affiliates from and against any and all claimslosses, lossesdamages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person Person may sustain arising from or as a result out of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect claims based on (a) the failure of such Custodian to deliver the required assessment of compliance at the time required under Section 14.01(b) of this Agreement or (b) any material misstatement or omission contained in the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense required assessment of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claimcompliance. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) foregoing indemnities shall survive the termination of this Agreement. In no event shall the Custodian or its directors, officers, agents and employees be held liable for any special, indirect or consequential damages resulting from any action taken or omitted to be taken by it or them hereunder or in connection herewith. GS Mortgage Securities Corp. 00 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: In accordance with Section 2.02 of the Standard Terms to the above-referenced Trust Agreement and subject to the termination further examination, the Trustee hereby certifies that, except as noted on the Schedule of Exceptions attached hereto, it, or resignation one or more Custodians on its behalf, has received a Trustee Mortgage Loan File that (a) (i) all documents required to be delivered to it pursuant to clause (a) through (e) and (g) of the Special Servicerdefinition of Trustee Mortgage Loan File are in its possession; and (ii) all powers of attorney required to be delivered to it pursuant to Section 1(i) of the Custodial Agreement are in its possession; provided that the Trustee (or one or more Custodians) has no obligation to verify the receipt of any such documents, the Certificate Administratorexistence of which was not made known to the Trustee (or any such Custodian) by the Trustee Mortgage Loan File, and provided further, that the Trustee (or one or more Custodians) has no obligation to determine whether recordation of any such power of attorney is necessary except the Trustee (or such Custodian) shall conclude that a power of attorney must be recorded if the document to which it relates is recorded; (b) such documents have been reviewed by it and appear regular on their face and related to such Mortgage Loans, except as set forth in the Trust Advisorattached exception report; provided, however, that no Custodian makes any representation or has any responsibilities as to the Master Servicer authenticity of such documents, their compliance with applicable law, or the Trustee.
collectibility of any of the Mortgage Loans relating thereto; and (dc) Any Non-Serviced each mortgage note has been endorsed in blank and each assignment has been assigned as required under clause (a) of the definition of Trustee Mortgage Loan Special Servicer File. Capitalized words and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer phrases used herein shall be indemnified by have the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating respective meanings assigned to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasance, bad faith or negligence them in the performance of its duties under the related Nonabove-Serviced Mortgage Loan Pooling and Servicing captioned Trust Agreement.
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2006-Ar1)
Indemnification; Third Party Claims. (a) The Special Servicer shall indemnify the Loan Originators, the Owner Trustee, the Trust, the Depositor, the Indenture Trustee and any Affiliatethe Noteholders, directortheir respective officers, officerdirectors, employeeemployees, member, manager or agent agents and "control persons," as such term is used under the Act and under the Securities Exchange Act of the Special Servicer 1934 as amended (the “Special each a "Servicer Indemnified Parties”Party") shall be indemnified and held hold harmless out each of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), them against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its Affiliates, directors, officers, employees, members, managers and agents shall be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne by the party seeking indemnification, without right of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations or duties under this Agreement or negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee) and the Trust shall pay, from amounts on deposit in the Collection Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer shall promptly make from the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee or agent or Controlling Person thereof, and hold them harmless against any and all claims, lossesdamages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees costs and expenses that such person may sustain arising resulting from any claim, demand, defense or as assertion based on or grounded upon, or resulting from, a result breach of any of the Servicer's representations and warranties and covenants contained in this Agreement or in any way relating to the failure of the Servicer to perform its duties and service the Loans in compliance with the terms of this Agreement except to the extent such loss arises out of such Servicer Indemnified Party's gross negligence or willful misconduct; provided, however, that if the Servicer is not liable pursuant to the provisions of Section 8.01(d) hereof for its failure to perform its duties and service the Loans in compliance with the terms of this Agreement, then the provisions of this Section 8.01 shall have no force and effect with respect to such failure.
(b) None of the Loan Originators, the Depositor or the Servicer or any of their respective Affiliates, directors, officers, employees or agents shall be under any liability to the Owner Trustee, the Issuer, the Indenture Trustee or the Securityholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Loan Originators, the Depositor, the Servicer or any of their respective Affiliates, directors, officers, employees, agents against the remedies provided herein for the breach of any warranties, representations or covenants made herein, or against any expense or liability specifically required to be borne by such party without right of reimbursement pursuant to the terms hereof, or against any expense or liability which would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance of the respective duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Depositor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master ServicerLoan Originators, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee. The Loan Originators, the Depositor, the Certificate AdministratorServicer and any of their respective Affiliates, the Custodiandirectors, the Trust Advisor or the Master Servicerofficers, as the case employees, agents may be) rely in good faith on any document of any kind which, prima facie, is properly executed and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy submitted by any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect Person respecting any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was made, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party was found to not have acted with willful misfeasance, bad faith or negligencematters arising hereunder.
(c) The indemnification provided in Sections 9.24(a) Each Loan Originator agrees to indemnify and 9.24(b) shall survive hold harmless the termination of this Agreement Depositor and the termination Noteholders, as the ultimate assignees from the Depositor (each an "Originator Indemnified Party," together with the Servicer Indemnified Parties, the "Indemnified Parties"), from and against any loss, liability, expense, damage, claim or resignation injury -97- 103 arising out of or based on (i) any breach of any representation, warranty or covenant of the Special ServicerLoan Originators, the Certificate AdministratorServicer or their Affiliates, in any Basic Document, including, without limitation, the Custodianorigination or prior servicing of the Loans by reason of any acts, omissions, or alleged acts or omissions arising out of activities of the Loan Originators, the Trust AdvisorServicer or their Affiliates, and (ii) any untrue statement by the Loan Originators, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share its Affiliates of any material fact or any such Person's failure to state a material fact necessary to make such statements not misleading with respect to any such Person's statements contained in any Basic Document, including, without limitation, any Officer's Certificate, statement, report or other document or information prepared by any such Person and all claimsfurnished or to be furnished by it pursuant to or in connection with the transactions contemplated thereby including, losseswithout limitation, penaltiessuch written information as may have been and may be furnished in connection with any due diligence investigation with respect to the Loans or any such Person's business, finesoperations or financial condition, forfeitures, legal including reasonable attorneys' fees and related costs, judgments and any other costs, liabilities, fees and costs or expenses incurred in connection with the defense of any legal action relating to any Non-Serviced Mortgage actual or threatened action, proceeding or claim; provided that the Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable Originators shall not indemnify an Originator Indemnified Party to the related Non-Serviced Companion Loans)extent such loss, reasonably requiring the use of counsel liability, expense, damage or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicer’s injury is due to either an Originator Indemnified Party's willful misfeasance, bad faith or negligence or by reason of an Originator Indemnified Party's reckless disregard of its obligations hereunder; provided, further, that the Loan Originators shall not be so required to indemnify an Originator Indemnified Party or to otherwise be liable to an Originator Indemnified Party for any losses in respect of the performance of its duties the Loans, the creditworthiness of the Borrowers under the Loans, changes in the market value of the Loans or other, similar investment risks associated with the Loans arising from a breach of any representation or warranty set forth in Section 3.05(a) or (b) hereof, a remedy for the breach of which is provided in Section 3.06 hereof. The provisions of this indemnity shall run directly to and be enforceable by an Originator Indemnified Party subject to the limitations hereof.
(d) With respect to a claim subject to indemnity hereunder made by any Person against an Indemnified Party (a "Third Party Claim"), such Indemnified Party shall notify the related Non-Serviced Mortgage Loan Pooling indemnifying parties (each an "Indemnifying Party") in writing of the Third Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third Party Claim unless the Indemnifying Parties shall have previously obtained actual knowledge thereof. Thereafter, the Indemnified Party shall deliver to the Indemnifying Parties, within a reasonable time after the Indemnified Party's receipt thereof, copies of all notices and Servicing Agreementdocuments (including court papers) received by the Indemnified Party relating to the Third Party Claim. No failure to give such notice or deliver such documents shall effect the rights to indemnity hereunder. Each Indemnifying Party shall promptly notify the Indenture Trustee and the Indemnified Party (if other than the Indenture Trustee) of any claim of which it has been notified and shall promptly notify the Indenture Trustee and the Indemnified Party (if applicable) of its intended course of action with respect to any claim.
(e) If a Third Party Claim is made against an Indemnified Party, (a) the related Indemnifying Party will be entitled to participate in the defense thereof and, (b) if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party, provided that in connection with such assumption (i) such counsel is not reasonably objected to -98- 104 by the Indemnified Party and (ii) the Indemnifying Party first admits in writing its liability to indemnify the Indemnified Party with respect to all elements of such claim in full. Should the related Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party elects to assume the defense of a Third Party Claim, the Indemnified Party will (i) cooperate in all reasonable respects with the Indemnifying Party in connection with such defense and (ii) not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party' prior written consent, as the case may be. If the Indemnifying Party shall assume the defense of any Third Party Claim, the Indemnified Party shall be entitled to participate in (but not control) such defense with its own counsel at its own expense. If the Indemnifying Party does not assume the defense of any such Third Party Claim, the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Indemnifying Party of such terms and the Indemnifying Party will promptly reimburse the Indemnified Party upon written request. Anything contained in this Agreement to the contrary notwithstanding, the Indemnifying Party shall not be entitled to assume the defense of any part of a Third Party Claim that seeks an order, injunction or other equitable relief or relief for other than money damages against an Indemnified Party unless the Indemnifying Party has demonstrated to such Indemnified Party reasonable financial capacity to meet its obligations with respect to such Third Party Claim.
Appears in 1 contract
Indemnification; Third Party Claims. (a) The Each Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of the each such Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified by the Trust, and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action or claim relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B NotesLoan, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses Agreement, and (ii) any action properly taken by the such Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the such Special Servicer by the Trustee, the Controlling Class Representative Trustee or the applicable Master Servicer pursuant to any provision of this Agreement, and the such Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees, members, managers and employees or agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the such Special Servicer of any information included by the such Special Servicer in the report required to be provided by the such Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The applicable Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trusteesuch Special Servicer) and the Trust shall pay, from amounts on deposit in the Collection applicable Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (andtermination of this Agreement and the termination or resignation of such Special Servicer. Any expenses incurred or indemnification payments made by the Trust shall be reimbursed by such Special Servicer, if and to the extent a court of competent jurisdiction makes a final, non-appealable judgment that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the such Special Servicer was found to the Master Servicerhave acted with willful misfeasance, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24bad faith or negligence.
(b) The Each Special Servicer agrees to indemnify the Trust, and each other party to this Agreement the Trustee, the Fiscal Agent, the Depositor, the applicable Master Servicer, the Paying Agent and any directorpartner, officerrepresentative, Affiliate, member, manager, employee or director, officer, employee, agent or Controlling Person thereofof the Trustee, the Fiscal Agent, the Depositor and the applicable Master Servicer, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Trust or the Trustee, the Fiscal Agent, the Depositor, the Paying Agent or the applicable Master Servicer may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of such Special Servicer's duties hereunder or by reason of negligent disregard of such Special Servicer's obligations and duties hereunder by the such Special Servicer. The Trustee, the Fiscal Agent, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer shall immediately notify the such Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate AdministratorFiscal Agent, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be, to indemnification hereunder, whereupon the such Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Fiscal Agent, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the such Special Servicer shall not affect any rights the Trust or the Trustee, the Fiscal Agent, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the applicable Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s 's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of such Special Servicer, the Paying Agent, the Trustee or the Fiscal Agent. Any expenses incurred or indemnification payments made by the such Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the such Special Servicer was not culpable of willful misfeasance, bad faith or such indemnifying negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party was is found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-Serviced Mortgage Loan initial applicable Special Servicer and any Affiliate, director, officer, employee, member, manager the Depositor expressly agree that the only information furnished by or agent on behalf of such Non-Serviced Mortgage Loan the applicable Special Servicer shall be indemnified by for inclusion in the Trust Preliminary Prospectus Supplement and held harmless against the Trust’s pro rata share of any Final Prospectus Supplement is the information set forth in the paragraph under the caption "SERVICING OF THE MORTGAGE LOANS--The Master Servicers and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan Special Servicers--Special Servicer’s willful misfeasance, bad faith or negligence in " of the performance of its duties under the related Non-Serviced Mortgage Loan Pooling Preliminary Prospectus Supplement and Servicing AgreementFinal Prospectus Supplement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 IQ9)
Indemnification; Third Party Claims. (a) The Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified and held harmless by the Trust, out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any the A/B Notes Mortgage Loan (including REO Loans), if and to the extent that the matter relates to such A/B Mortgage Loan) against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B Notes, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative Trustee or the Master Servicer pursuant to any provision of this Agreement, Agreement in each case and the Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees, members, managers employees and agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeSpecial Servicer) and the Trust shall pay, from amounts on deposit in the Collection Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (and, if and to the extent that the amount due shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out termination of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to the Special Servicer pursuant to this Section 9.24.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement and any director, officer, member, manager, employee the termination or agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person may sustain arising from or as a result resignation of the willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s defense of such claim is materially prejudiced thereby. Any expenses incurred or indemnification payments made by the Special Servicer Trust shall be reimbursed by the party so paid or at the direction of which a payment was madeSpecial Servicer, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable or such indemnifying party 260 was found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive . Notwithstanding the termination of this Agreement and the termination foregoing, if such loss, liability or resignation of the Special Servicer, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Trustee.
(d) Any Non-expense relates specifically to a particular Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Pari Passu Mortgage Loan (or another Mortgage Loan included in the Trust) or a particular Serviced Companion Mortgage Loan, then such indemnification shall be paid out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan, other Mortgage Loan or Serviced Companion Mortgage Loan, as applicable. If such loss, liability or expense relates to an A/B Mortgage Loan but excluding any such losses allocable does not relate to the related Non-Serviced Companion Loans)A Note and does not relate primarily to the administration of the Trust or any REMIC formed hereunder or to any determination respecting the amount, reasonably requiring payment or avoidance of any tax under the use REMIC provisions of counsel the Code or the incurring of expenses other than any losses incurred by reason actual payment of any Non-Serviced Mortgage Loan Special Servicer’s willful misfeasanceREMIC tax or expense, bad faith or negligence in the performance then such indemnification shall be paid first out of its duties under collections on, and other proceeds of, the related Non-Serviced Mortgage Loan Pooling B Note until such point as such indemnification is paid in full or a Final Recovery Determination has been made with respect to such B Note and Servicing Agreementonly then out of collections on, and other proceeds of, the related A Note.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Hq11)
Indemnification; Third Party Claims. (a) The Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee, member, manager employee or agent of each the Special Servicer (the “Special Servicer Indemnified Parties”) shall be indemnified by the Trust, and held harmless out of the proceeds of the Mortgage Loans, any Serviced Companion Loans and any B Notes (including REO Loans), against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses (“Special Servicer Losses”) incurred in connection with any legal action or claim relating to (i) this Agreement, any Mortgage Loans, any Serviced Companion Loans, any B NotesLoan, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses Agreement, and (ii) any action properly taken by the Special Servicer in accordance with this Agreement based on an the instruction delivered in writing to the Special Servicer by the Trustee, the Controlling Class Representative Trustee or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees, members, managers and employees or agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ ' fees) incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, in each case other than any loss, liability or expense: (A) specifically required to be borne expense incurred by the party seeking indemnification, without right reason of reimbursement pursuant to the terms of this Agreement; (B) which constitutes a Servicing Advance that is otherwise reimbursable under this Agreement; (C) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any breach on the part of that party of a representation or warranty made in this Agreement; or (D) incurred in connection with any legal action or claim against the party seeking indemnification, resulting from any willful misfeasance, bad faith or negligence on the part of that party in the performance of its obligations duties hereunder or duties under this Agreement or by reason of negligent disregard of such obligations or duties. Except as provided in the following sentence, indemnification for Special Servicer Losses described in the preceding paragraph (including in the case of such Special Servicer Losses that relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense) shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole but not out of collections on, or other proceeds of, any Serviced Companion Loan or any B Note. In the case of any such Special Servicer Losses that do not relate primarily to the administration of the Trust, to any REMIC Pool or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense:
(1) if such Special Servicer Losses relate to a Loan Pair, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, out of collections on, and other proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion Loan, in the relative proportions provided for in the applicable Intercreditor Agreement and (y) if the collections and proceeds described in subclause (x) of this clause (1) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Special Servicer Losses relate to any A/B Whole Loan, then (subject to the related Intercreditor Agreement) such indemnification shall be paid (x) first, if and to the extent permitted under the applicable Intercreditor Agreement, out of collections on, and other proceeds of, the B Note or B Notes related to such A/B Whole Loan, and (y) if the collections and proceeds described in subclause (x) of this clause (2) are not sufficient to so indemnify the Special Servicer Indemnified Parties on a current basis, then the balance of such indemnification shall be paid out of collections on, and other proceeds of, the Mortgage Loans as a wholeduties hereunder. The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the TrusteeSpecial Servicer) and the Trust shall pay, from amounts on deposit in the Collection applicable Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. The Master Servicer indemnification provided herein shall promptly make from survive the Collection Account (and, if termination of this Agreement and to the extent that termination or resignation of the amount due Special Servicer. Any expenses incurred or indemnification payments made by the Trust shall be paid from collections on, and other proceeds of, any Serviced Companion Loan or any B Note, as set forth above, out of the related Serviced Companion Loan Custodial Account or the related A/B Whole Loan Custodial Account) any payments certified reimbursed by the Special Servicer to the Master Servicer, the Trustee and the Certificate Administrator as required to be made to if a court of competent jurisdiction makes a final, non-appealable judgment that the Special Servicer pursuant was found to this Section 9.24have acted with willful misfeasance, bad faith or negligence.
(b) The Special Servicer agrees to indemnify the Trust, and each other party to this Agreement the Trustee, the Depositor, the Master Servicer, the Paying Agent and any directorpartner, officerrepresentative, Affiliate, member, manager, employee or director, officer, employee, agent or Controlling Person thereofof the Trustee, the Depositor and the Master Servicer, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that such person the Trust or the Trustee, the Depositor, the Paying Agent or the Master Servicer may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of the Special Servicer's duties hereunder or by reason of negligent disregard of the Special Servicer's obligations and duties hereunder by the Special Servicer. The Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Certificate Administrator, the Custodian, the Trust Advisor Paying Agent or the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Special Servicer’s 's defense of such claim is materially prejudiced thereby. The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Paying Agent or the Trustee. Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid or at the direction of which a payment was madepaid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable of willful misfeasance, bad faith or such indemnifying negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party was is found to not have acted with willful misfeasance, bad faith or negligence.
(c) The indemnification provided in Sections 9.24(a) and 9.24(b) shall survive the termination of this Agreement Special Servicer and the termination Depositor expressly agree that the only information furnished by or resignation on behalf of the Special Servicer, Servicer for inclusion in the Certificate Administrator, Free Writing Prospectus and the Custodian, Final Prospectus Supplement is the Trust Advisor, information set forth in the Master Servicer or paragraph under the Trustee.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any Affiliate, director, officer, employee, member, manager or agent of such Non-Serviced Mortgage Loan Special Servicer shall be indemnified by the Trust and held harmless against the Trust’s pro rata share of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to any Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to the related Non-Serviced Companion Loans), reasonably requiring the use of counsel or the incurring of expenses other than any losses incurred by reason of any Non-Serviced Mortgage Loan caption ["TRANSACTION PARTIES--Special Servicer’s willful misfeasance, bad faith or negligence in "] of the performance of its duties under the related Non-Serviced Mortgage Loan Pooling Free Writing Prospectus and Servicing AgreementFinal Prospectus Supplement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc)