Limits of Collateral Manager Responsibility; Indemnification. (a) The Collateral Manager assumes no responsibility under this Agreement other than to render the services called for hereunder and under the terms of the Indenture applicable to it with reasonable care and in good faith and, subject to the standard of conduct described in the next succeeding sentence, shall not be responsible for any action of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Collateral Manager and its Affiliates and their respective members, managers, directors, officers, stockholders, employees and agents shall not be liable to the Issuer, the Trustee, any Secured Party or the Holders of the Class A Notes or any other Persons for any Losses (as defined below) incurred, or for any decrease in the value of the Collateral or the Class A Notes, as a result of the actions taken or recommended, or for any omissions, by the Collateral Manager or its Affiliates or their respective members, managers, directors, officers, stockholders, employees or agents under this Agreement, except by reason of acts or omissions constituting bad faith, fraud, willful misconduct or gross negligence in the performance of its obligations hereunder and under the applicable terms of the Indenture. Notwithstanding anything in this Agreement or the Indenture to the contrary, any obligation of the Collateral Manager to apply commercially reasonable efforts in purchasing and disposing of Collateral Obligations and Eligible Investments and the performance of its other duties under this Agreement shall permit the Collateral Manager to take into account its investment decision-making process and any other considerations it deems appropriate. The Collateral Manager and its Affiliates and their respective members, managers, directors, officers, stockholders, employees and agents shall be entitled to indemnification by the Issuer in accordance with Section 10(b)
Appears in 3 contracts
Samples: Collateral Management Agreement (FS Investment Corp II), Collateral Management Agreement (FS Investment CORP), Collateral Management Agreement (FS Investment CORP)
Limits of Collateral Manager Responsibility; Indemnification. (a) The Subject to Section 7, the Collateral Manager assumes no responsibility under this Agreement other than to render the services called for hereunder and under the terms of the Indenture applicable to it with reasonable care and in good faith and, subject to the standard of conduct care described in the next succeeding sentence, shall not be responsible for any action of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Collateral Manager and its Affiliates and their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, stockholders, employees and agents shall not be liable to the Issuer, the Originator, the Trustee, the Fiscal Agent, the Collateral Administrator, any Secured Party or the Holders of the Class A Notes Debt or any other Persons for any Losses (as defined below) incurred, or for any decrease in the value of the Collateral or the Class A NotesAssets, as a result of the actions taken or recommended, or for any omissions, by the Collateral Manager or its Affiliates or their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, stockholders, employees or agents under this AgreementAgreement or the Indenture, except (i) by reason of acts or omissions constituting which have been determined in a final, non-appealable judicial proceeding to constitute bad faith, fraud, willful 18 |US-DOCS\153065469.7|| misconduct or gross negligence in the performance of of, or reckless disregard with respect to, its obligations hereunder hereunder; or (ii) that arise out of or are based upon any untrue statement or omission of a material fact in an Offering Circular based upon information contained in the Collateral Manager Information (each, a “Collateral Manager Breach”). United States federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith and nothing contained herein will constitute a waiver or limitation of any rights which the Issuer or any holder of Debt may have under any applicable terms of the Indenturefederal or state securities laws. Notwithstanding anything in this Agreement or the Indenture to the contrary, any obligation of the Collateral Manager to apply commercially reasonable efforts in purchasing and disposing of Collateral Obligations Obligations, Restructured Assets, Permitted Equity Securities, Equity Securities and Eligible Investments and the performance of its other duties under this Agreement and the Indenture shall permit the Collateral Manager to take into account its investment decision-making process and any other considerations it deems appropriate. It is understood in connection with the foregoing provisions and any other provision of this Agreement and any other Transaction Document (including the Indenture) applicable to the Collateral Manager, that the Collateral Manager is not required to make any independent investigation of any laws or regulations or interpretations thereof that may affect or be applicable to the holders of the Debt. The Collateral Manager and its Affiliates and their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, stockholders, employees and agents shall be entitled to indemnification by the Issuer in accordance with Section 10(b) and the Priority of Payments. Notwithstanding anything to the contrary in this Agreement or in the Indenture, in no event shall the Collateral Manager or its Affiliates be liable for special, indirect, consequential or punitive damages.
(b) To the maximum extent allowed under applicable law, including, without limitation, as applicable, ERISA, the Issuer shall indemnify and hold harmless (the Issuer, in such case the “Indemnifying Party”) the Collateral Manager and its Affiliates and their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, employees and agents (each, an “Indemnified Party”) from and against any and all expenses, losses, damages, liabilities, demands, charges or claims of any nature whatsoever (including reasonable attorneys’ fees and expenses) (collectively, “Losses”), as incurred, in respect of or arising from (i) the issuance or the incurrence of the Debt, (ii) the transactions described in any Offering Circular, the Indenture, this Agreement or the Transaction Documents, (iii) any action or failure to act by any Indemnified Party, or (iv) in respect of any untrue statement or alleged untrue statement of a material fact contained in any Offering Circular, or any omission or alleged omission to state a material fact necessary to make the statements in any Offering Circular, in light of the circumstances under which they were made, not misleading; provided that with respect to the foregoing indemnity, the Issuer shall not be liable for any Losses that arise out of or are based upon any Collateral Manager Breach. The obligations of the Issuer under this Section 10 to indemnify any Indemnified Party for any Losses will be payable solely out of the Assets in accordance with the Priority of Payments. Notwithstanding anything to the contrary in this Agreement or the Indenture, in no event will the Collateral Manager or its Affiliate be liable for special, indirect, consequential or punitive damages. |US-DOCS\153065469.7|| The foregoing provisions, however, shall not be construed to relieve any person of any liability to the extent that such liability may not be waived, modified or limited under applicable law. An Indemnified Party shall (or with respect to the Collateral Manager’s Affiliates and the principals, partners, members, stockholders, directors, managers, managing directors, officers, employees and agents of the Collateral Manager and its Affiliates, the Collateral Manager shall cause such Indemnified Party to) notify promptly the Indemnifying Party if the Indemnified Party receives a complaint, claim, compulsory process or other notice of any loss, claim, damage or liability giving rise to a claim for indemnification under this Section 10, but failure so to notify the Indemnifying Party (i) shall not relieve such Indemnifying Party from its obligations under this Section 10 unless and to the extent that it did not otherwise learn of such action or proceeding and to the extent such failure results in the forfeiture by the Indemnifying Party of substantial rights and defenses and (ii) shall not, in any event, relieve the Indemnifying Party of any obligations to any Person entitled to indemnity pursuant to this Section 10 other than the indemnification obligations provided for in this Section 10.
(c) With respect to any claim made or threatened against an Indemnified Party, or compulsory process or request served upon such Indemnified Party for which such Indemnified Party is or may be entitled to indemnification under this Section 10, such Indemnified Party shall (or with respect to the Collateral Manager’s Affiliates and the principals, partners, members, stockholders, directors, managers, managing directors, officers, employees and agents of the Collateral Manager and its Affiliates, the Collateral Manager shall cause such Indemnified Party to), at the Indemnifying Party’s expense:
(i) provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, but not limited to, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(ii) cooperate and take all such steps as the Indemnifying Party may reasonably request to preserve and protect any defense to such claim;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim and, to the extent that it shall wish, to assume the defense thereof, with counsel satisfactory to such Indemnified Party (who shall not, except with the consent of the Indemnified Party, be counsel to the Indemnifying Party), and, after notice from the Indemnifying Party to such Indemnified Party of its election to so assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under such subsection for any legal expenses of other counsel or any other expenses directly related to the defense thereof, in each case subsequently incurred by such Indemnified Party, other than reasonable costs of investigation; |US-DOCS\153065469.7||
(iv) neither incur any material expense to defend against any such claim nor make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make which would expose such Indemnified Party to (A) unindemnified liability or (B) any liability in respect of which, in the good faith determination of such Indemnified Party, the Indemnifying Party is unlikely to have sufficient funds available to indemnify the Indemnified Party in full, taking into account the priorities set forth in Article XI of the Indenture) without the prior written consent of the Indemnifying Party; provided that the Indemnifying Party shall have advised such Indemnified Party that such Indemnified Party is entitled to be indemnified hereunder with respect to such claim; and
(v) without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, neither release, settle or compromise any claim giving rise to a claim for indemnity hereunder, nor permit a default or consent to the entry of any judgment in respect thereof, unless such settlement, compromise or consent includes, as an unconditional term thereof, the giving by the claimant to the Indemnifying Party of a release from liability substantially equivalent to the release given by the claimant to such Indemnified Party in respect of such claim; provided that such Indemnified Party shall not be required to seek or obtain such consent if it determines in good faith, that the Indemnifying Party is unlikely to have sufficient funds available to indemnify it in full, taking into account the priorities set forth in Article XI of the Indenture; provided that the Indemnifying Party shall have advised such Indemnified Party that such Indemnified Party is entitled to be indemnified hereunder with respect to such claim.
(d) In the event that any Indemnified Party expressly waives in writing its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
(e) In the discharge of its obligations with respect to the replacement of the Reference Rate, the Collateral Manager will not be liable for actions taken or omitted to be taken in good faith and without willful misconduct. The Issuer, subject to the foregoing, will waive and release any and all claims, and the Indenture will provide that the Holders will be deemed to have waived and released any and all claims, with respect to any action taken or omitted to be taken with respect to an alternative reference rate, including, without limitation, determinations as to the selection of an alternative Reference Rate, and the implementation of any Reference Rate Amendment.
Appears in 1 contract
Samples: Collateral Management Agreement (Carlyle Credit Solutions, Inc.)
Limits of Collateral Manager Responsibility; Indemnification. (a) The Collateral Manager assumes no responsibility under this Agreement other than to render the services called for hereunder and under the terms of the Indenture made applicable to it with reasonable care and the Collateral Manager pursuant to the terms of this Agreement in good faith and, subject to the standard of conduct described in the next succeeding sentence, shall not be responsible for any action of the Issuer or the Trustee Trustee. Notwithstanding anything contained herein or in following or declining the Indenture to follow any advicethe contrary, recommendation or direction of neither the Collateral Manager. The Collateral Manager and nor any of its Affiliates and Affiliates, nor their respective members, managersstockholders, directors, officersofficers or employees, stockholders, employees and agents shall not be liable to the Issuer, the Trustee, any Secured Party or the Collateral Administrator, the Holders of the Class A Notes or any other Persons person for any Losses (as defined below) incurredLiabilities incurred by the Issuer, or for any decrease in the value of Trustee, the Collateral Administrator, the Holders or such other person that arise out of or in connection with the Class A Notes, as a result of the actions taken or recommended, or for any omissions, performance by the Collateral Manager or of its Affiliates or their respective members, managers, directors, officers, stockholders, employees or agents duties under this AgreementAgreement and the Indenture, except (i) by reason of acts or omissions constituting bad faith, fraud, willful misconduct or gross negligence in the performance performance, or reckless disregard, of its obligations hereunder and or under the applicable terms of the Indenture. Indenture applicable to it; or (ii) with respect to the Collateral Manager Information, to the extent such information contains any untrue statement of material fact or omits to state a material fact necessary in order to make the statements in the Offering Circular, in the light of the circumstances under which they were made, not misleading (each of the occurrences set forth in clauses (i) and (ii), a “Collateral Manager Breach”).
(b) The Issuer shall indemnify and hold harmless (the Issuer in such case, the “Indemnifying Party”) the Collateral Manager and its Affiliates, and their respective stockholders, directors, officers and employees (such parties collectively in such case, the “Indemnified Parties”) from and against any and all Liabilities, and will reimburse each such Indemnified Party for all reasonable fees and expenses (including reasonable fees and expenses of counsel) (but excluding any recoverable VAT) (collectively, the “Expenses”) as such Expenses are incurred in investigating, preparing, pursuing or defending any claim, action, proceeding or investigation with respect to any pending or threatened litigation (collectively, the “Actions”), caused by, or arising out of or in connection with, the issuance and incurrence of the Debt, the pre-closing acquisition of Collateral Assets or other actions on behalf of the Issuer prior to the Closing Date, the transactions contemplated by the Offering Circular, the Indenture or this Agreement and/or any action taken by, or any failure to act by, such Indemnified Party; provided, however, that no Indemnified Party shall be indemnified for any Liabilities or Expenses it incurs as a result of any acts or omissions by any Indemnified Party constituting Collateral Manager Breaches.
(c) Notwithstanding anything in this Agreement or the Indenture contained herein to the contrary, any obligation the obligations of the Collateral Manager to apply commercially reasonable efforts in purchasing and disposing of Collateral Obligations and Eligible Investments and the performance of its other duties Issuer under this Agreement Section 10 shall permit be payable solely out of the Collateral Manager Assets in accordance with the Priority of Payments set forth in the Indenture and on the exhaustion thereof all obligations of, and claims against, the Issuer under this Section 10 shall be extinguished and shall not thereafter revive.
(d) With respect to take into account its investment decision-making any claim made or threatened against an Indemnified Party, or compulsory process and or request or other notice of any other considerations it deems appropriate. The Collateral Manager and its Affiliates and their respective membersLiability served upon an Indemnified Party, managersfor which such Indemnified Party is or may be entitled to indemnification under this Section 10, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the Indemnifying Party of such claim within thirty (30) days after such Indemnified Party’s receipt of actual notice that such claim is made or threatened, which notice to the Indemnifying Party shall specify in reasonable detail the nature of the claim made or threatened and agents the amount of the claim made or threatened; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 10 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the Indemnifying Party’s expense, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, but not limited to, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) at the Indemnifying Party’s expense, cooperate and take all such steps as the Indemnifying Party may reasonably request to preserve and protect any defense to such claim;
(iv) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim; and
(v) neither release nor settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make which would expose such Indemnified Party to unindemnified liability) nor permit a default judgment nor consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; provided that the Indemnifying Party shall have advised such Indemnified Party that such Indemnified Party is entitled to be indemnified hereunder with respect to such claim and the Indemnifying Party is reasonably anticipated to have sufficient funds available to pay such indemnity in full.
(e) In the event that any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to indemnification participate in the related action nor to provide consent under Section 10(d)(v).
(f) U.S. federal and state securities laws may impose liability under certain circumstances on Persons that act in good faith. Nothing in this Agreement is intended to, or shall, constitute a waiver or limitation of any rights or remedies that any Person may otherwise have under such laws or any other applicable law.
(g) In the discharge of its obligations with respect to the replacement, administration, submission or any other matter related to the rates in the definition of “Term SOFR Reference Rate” or “Reference Rate” or with respect to any other rate that is an alternative, replacement, rate that is an alternative or replacement for or successor to any of such rate or the effect of any of the foregoing or a Reference Rate Amendment, the Collateral Manager shall not be liable for actions taken or omitted to be taken in good faith and without willful misconduct. The Issuer, subject to the foregoing, waives and releases any and all claims with respect to any action taken or omitted to be taken by the Issuer Collateral Manager in good faith and without willful misconduct with respect to any Fallback Rate, including, without limitation, the Collateral Manager’s determinations as to the selection of any Fallback Rate and the implementation of any Benchmark Replacement Conforming Changes or, to extent permitted by the Indenture, any amendments or modifications to the Indenture (in accordance with Section 10(b)its terms) in connection with the adoption of, or failure to adopt, any Fallback Rate.
Appears in 1 contract
Samples: Collateral Management Agreement (HPS Corporate Lending Fund)
Limits of Collateral Manager Responsibility; Indemnification. (a) The Subject to Section 7, the Collateral Manager assumes no responsibility under this Agreement other than to render the services called for hereunder and under the terms of the Indenture applicable to it with reasonable care and in good faith and, subject to the standard of conduct care described in the next succeeding sentence, shall not be responsible for any action of the Issuer or the Collateral Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Collateral Manager and its Affiliates and their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, stockholders, employees and agents shall not be liable to the Issuer, the Collateral Trustee, the Fiscal Agent, the Collateral Administrator, any Secured Party or the Holders of the Class A Notes Debt or any other Persons for any Losses (as defined below) incurred, or for any decrease in the value of the Collateral or the Class A NotesAssets, as a result of the actions taken or recommended, or for any omissions, by the Collateral Manager or its Affiliates or their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, stockholders, employees or agents under this AgreementAgreement or the Indenture, except (i) by reason of acts or omissions constituting which have been determined in a final, non-appealable judicial proceeding to constitute bad faith, fraud, willful misconduct or gross negligence in the performance of of, or reckless disregard with respect to, its obligations hereunder hereunder; or (ii) that arise out of or are based upon any untrue statement or omission | of a material fact in an Offering Circular based upon information contained in the Collateral Manager Information (each, a “Collateral Manager Breach”). United States federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith and nothing contained herein will constitute a waiver or limitation of any rights which the Issuer or any holder of Debt may have under any applicable terms of the Indenturefederal or state securities laws. Notwithstanding anything in this Agreement or the Indenture to the contrary, any obligation of the Collateral Manager to apply commercially reasonable efforts in purchasing and disposing of Collateral Obligations Obligations, Restructured assets, Permitted Equity Securities, Equity Securities and Eligible Investments and the performance of its other duties under this Agreement and the Indenture shall permit the Collateral Manager to take into account its investment decision-making process and any other considerations it deems appropriate. It is understood in connection with the foregoing provisions and any other provision of this Agreement and any other Transaction Document (including the Indenture) applicable to the Collateral Manager, that the Collateral Manager is not required to make any independent investigation of any laws or regulations or interpretations thereof that may affect or be applicable to the holders of the Debt. The Collateral Manager and its Affiliates and their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, stockholders, employees and agents shall be entitled to indemnification by the Issuer in accordance with Section 10(b) and the Priority of Payments Notwithstanding anything to the contrary in this Agreement or in the Indenture, in no event shall the Collateral Manager or its Affiliates be liable for special, indirect, consequential or punitive damages.
(b) To the maximum extent allowed under applicable law, including, without limitation, as applicable, ERISA, the Issuer shall indemnify and hold harmless (the Issuer, in such case the “Indemnifying Party”) the Collateral Manager and its Affiliates and their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, employees and agents (each, an “Indemnified Party”) from and against any and all expenses, losses, damages, liabilities, demands, charges or claims of any nature whatsoever (including reasonable attorneys’ fees and expenses) (collectively, “Losses”), as incurred, in respect of or arising from (i) the issuance or the incurrence of the Debt, (ii) the transactions described in any Offering Circular, the Indenture, this Agreement or the Transaction Documents, (iii) any action or failure to act by any Indemnified Party, or (iv) in respect of any untrue statement or alleged untrue statement of a material fact contained in any Offering Circular, or any omission or alleged omission to state a material fact necessary to make the statements in any Offering Circular, in light of the circumstances under which they were made, not misleading; provided that with respect to the foregoing indemnity, the Issuer shall not be liable for any Losses that arise out of or are based upon any Collateral Manager Breach. The obligations of the Issuer under this Section 10 to indemnify any Indemnified Party for any Losses will be payable solely out of the Assets in accordance with the Priority of Payments. Notwithstanding anything to the contrary in this Agreement or the Indenture, in no event will the Collateral Manager or its Affiliate be liable for special, direct, consequential or punitive damages. The foregoing provisions, however, shall not be construed to relieve any person of any liability to the extent that such liability may not be waived, modified or limited under applicable law. | An Indemnified Party shall (or with respect to the Collateral Manager’s Affiliates and the principals, partners, members, stockholders, directors, managers, managing directors, officers, employees and agents of the Collateral Manager and its Affiliates, the Collateral Manager shall cause such Indemnified Party to) notify promptly the Indemnifying Party if the Indemnified Party receives a complaint, claim, compulsory process or other notice of any loss, claim, damage or liability giving rise to a claim for indemnification under this Section 10, but failure so to notify the Indemnifying Party (i) shall not relieve such Indemnifying Party from its obligations under this Section 10 unless and to the extent that it did not otherwise learn of such action or proceeding and to the extent such failure results in the forfeiture by the Indemnifying Party of substantial rights and defenses and (ii) shall not, in any event, relieve the Indemnifying Party of any obligations to any Person entitled to indemnity pursuant to this Section 10 other than the indemnification obligations provided for in this Section 10.
(c) With respect to any claim made or threatened against an Indemnified Party, or compulsory process or request served upon such Indemnified Party for which such Indemnified Party is or may be entitled to indemnification under this Section 10, such Indemnified Party shall (or with respect to the Collateral Manager’s Affiliates and the principals, partners, members, stockholders, directors, managers, managing directors, officers, employees and agents of the Collateral Manager and its Affiliates, the Collateral Manager shall cause such Indemnified Party to), at the Indemnifying Party’s expense:
(i) provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, but not limited to, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(ii) cooperate and take all such steps as the Indemnifying Party may reasonably request to preserve and protect any defense to such claim;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim and, to the extent that it shall wish, to assume the defense thereof, with counsel satisfactory to such Indemnified Party (who shall not, except with the consent of the Indemnified Party, be counsel to the Indemnifying Party), and, after notice from the Indemnifying Party to such Indemnified Party of its election to so assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under such subsection for any legal expenses of other counsel or any other expenses directly related to the defense thereof, in each case subsequently incurred by such Indemnified Party, other than reasonable costs of investigation;
(iv) neither incur any material expense to defend against any such claim nor make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make which would expose such Indemnified Party to (A) unindemnified liability or (B) any liability in respect of which, 20 | in the good faith determination of such Indemnified Party, the Indemnifying Party is unlikely to have sufficient funds available to indemnify the Indemnified Party in full, taking into account the priorities set forth in Article XI of the Indenture) without the prior written consent of the Indemnifying Party; provided that the Indemnifying Party shall have advised such Indemnified Party that such Indemnified Party is entitled to be indemnified hereunder with respect to such claim; and
(v) without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, neither release, settle or compromise any claim giving rise to a claim for indemnity hereunder, nor permit a default or consent to the entry of any judgment in respect thereof, unless such settlement, compromise or consent includes, as an unconditional term thereof, the giving by the claimant to the Indemnifying Party of a release from liability substantially equivalent to the release given by the claimant to such Indemnified Party in respect of such claim; provided that such Indemnified Party shall not be required to seek or obtain such consent if it determines in good faith, that the Indemnifying Party is unlikely to have sufficient funds available to indemnify it in full, taking into account the priorities set forth in Article XI of the Indenture; provided that the Indemnifying Party shall have advised such Indemnified Party that such Indemnified Party is entitled to be indemnified hereunder with respect to such claim.
(d) In the event that any Indemnified Party expressly waives in writing its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
(e) In the discharge of its obligations with respect to the replacement of the Reference Rate, the Collateral Manager will not be liable for actions taken or omitted to be taken in good faith and without willful misconduct. The Issuer, subject to the foregoing, will waive and release any and all claims, and the Indenture will provide that the Holders will be deemed to have waived and released any and all claims, with respect to any action taken or omitted to be taken with respect to an alternative reference rate, including, without limitation, determinations as to the selection of an alternative Reference Rate, and the implementation of any Reference Rate Amendment.
Appears in 1 contract
Samples: Collateral Management Agreement (Carlyle Secured Lending, Inc.)
Limits of Collateral Manager Responsibility; Indemnification. (a) The Collateral Manager assumes no responsibility under this Agreement other than to render the services called for hereunder and under the terms of the Indenture made applicable to it with reasonable care and the Collateral Manager pursuant to the terms of this Agreement in good faith and, subject to the standard of conduct described in the next succeeding sentence, shall not be responsible for any action of the Issuer or the Trustee Trustee. Notwithstanding anything contained herein or in following or declining the Indenture to follow any advicethe contrary, recommendation or direction of neither the Collateral Manager. The Collateral Manager and nor any of its Affiliates and Affiliates, nor their respective members, managersstockholders, directors, officersofficers or employees, stockholders, employees and agents shall not be liable to the Issuer, the Trustee, any Secured Party or the Collateral Administrator, the Holders of the Class A Notes or any other Persons person for any Losses (as defined below) incurredLiabilities incurred by the Issuer, or for any decrease in the value of Trustee, the Collateral Administrator, the Holders or such other person that arise out of or in connection with the Class A Notes, as a result of the actions taken or recommended, or for any omissions, performance by the Collateral Manager or of its Affiliates or their respective members, managers, directors, officers, stockholders, employees or agents duties under this AgreementAgreement and the Indenture, except (i) by reason of acts or omissions constituting bad faith, fraud, willful misconduct or gross negligence in the performance performance, or reckless disregard, of its obligations hereunder and or under the applicable terms of the Indenture. Indenture applicable to it; or (ii) with respect to the Collateral Manager Information, to the extent such information contains any untrue statement of material fact or omits to state a material fact necessary in order to make the statements in the Offering Circular, in the light of the circumstances under which they were made, not misleading (each of the occurrences set forth in clauses (i) and (ii), a “Collateral Manager Breach”).
(b) The Issuer shall indemnify and hold harmless (the Issuer in such case, the “Indemnifying Party”) the Collateral Manager and its Affiliates, and their respective stockholders, directors, officers and employees (such parties collectively in such case, the “Indemnified Parties”) from and against any and all Liabilities, and will reimburse each such Indemnified Party for all reasonable fees and expenses (including reasonable fees and expenses of counsel) (but excluding any recoverable VAT) (collectively, the “Expenses”) as such Expenses are incurred in investigating, preparing, pursuing or defending any claim, action, proceeding or investigation with respect to any pending or threatened litigation (collectively, the “Actions”), caused by, or arising out of or in connection with, the issuance of the Debt, the pre-closing acquisition of Collateral Assets or other actions on behalf of the Issuer prior to the Closing Date, the transactions contemplated by the Offering Circular, the Indenture or this Agreement and/or any action taken by, or any failure to act by, such Indemnified Party; provided, however, that no Indemnified Party shall be indemnified for any Liabilities or Expenses it incurs as a result of any acts or omissions by any Indemnified Party constituting Collateral Manager Breaches.
(c) Notwithstanding anything in this Agreement or the Indenture contained herein to the contrary, any obligation the obligations of the Collateral Manager to apply commercially reasonable efforts in purchasing and disposing of Collateral Obligations and Eligible Investments and the performance of its other duties Issuer under this Agreement Section 10 shall permit be payable solely out of the Collateral Manager Assets in accordance with the Priority of Payments set forth in the Indenture and on the exhaustion thereof all obligations of, and claims against, the Issuer under this Section 10 shall be extinguished and shall not thereafter revive.
(d) With respect to take into account its investment decision-making any claim made or threatened against an Indemnified Party, or compulsory process and or request or other notice of any other considerations it deems appropriate. The Collateral Manager and its Affiliates and their respective membersLiability served upon an Indemnified Party, managersfor which such Indemnified Party is or may be entitled to indemnification under this Section 10, such Indemnified Party shall (or with respect to Indemnified Parties that are directors, officers, stockholders, agents or employees of the Collateral Manager, the Collateral Manager shall cause such Indemnified Party to):
(i) give written notice to the Indemnifying Party of such claim within thirty (30) days after such Indemnified Party’s receipt of actual notice that such claim is made or threatened, which notice to the Indemnifying Party shall specify in reasonable detail the nature of the claim made or threatened and agents the amount of the claim made or threatened; provided, however, that the failure of any Indemnified Party to provide such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 10 except to the extent that the Indemnifying Party is materially prejudiced or otherwise forfeits rights or defenses by reason of such failure;
(ii) at the Indemnifying Party’s expense, provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, but not limited to, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) at the Indemnifying Party’s expense, cooperate and take all such steps as the Indemnifying Party may reasonably request to preserve and protect any defense to such claim;
(iv) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim; and
(v) neither release nor settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make which would expose such Indemnified Party to unindemnified liability) nor permit a default judgment nor consent to the entry of any judgment in respect thereof, in each case without the prior written consent of the Indemnifying Party; provided that the Indemnifying Party shall have advised such Indemnified Party that such Indemnified Party is entitled to be indemnified hereunder with respect to such claim and the Indemnifying Party is reasonably anticipated to have sufficient funds available to pay such indemnity in full.
(e) In the event that any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to indemnification participate in the related action nor to provide consent under Section 10(d)(v).
(f) U.S. federal and state securities laws may impose liability under certain circumstances on Persons that act in good faith. Nothing in this Agreement is intended to, or shall, constitute a waiver or limitation of any rights or remedies that any Person may otherwise have under such laws or any other applicable law.
(g) In the discharge of its obligations with respect to the replacement, administration, submission or any other matter related to the rates in the definition of “Term SOFR Reference Rate” or “Reference Rate” or with respect to any other rate that is an alternative, replacement, rate that is an alternative or replacement for or successor to any of such rate or the effect of any of the foregoing or a Reference Rate Amendment, the Collateral Manager shall not be liable for actions taken or omitted to be taken in good faith and without willful misconduct. The Issuer, subject to the foregoing, waives and releases any and all claims with respect to any action taken or omitted to be taken by the Issuer Collateral Manager in good faith and without willful misconduct with respect to any Fallback Rate, including, without limitation, the Collateral Manager’s determinations as to the selection of any Fallback Rate and the implementation of any Benchmark Replacement Conforming Changes or, to extent permitted by the Indenture, any amendments or modifications to the Indenture (in accordance with Section 10(b)its terms) in connection with the adoption of, or failure to adopt, any Fallback Rate.
Appears in 1 contract
Samples: Collateral Management Agreement (HPS Corporate Lending Fund)
Limits of Collateral Manager Responsibility; Indemnification. (a) The Subject to Section 7, the Collateral Manager assumes no responsibility under this Agreement other than to render the services called for hereunder and under the terms of the Indenture applicable to it with reasonable care and in good faith and, subject to the standard of conduct described in the next succeeding sentence, shall not be responsible for any action of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Collateral Manager and its Affiliates and their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, stockholders, employees and agents shall not be liable to the Issuer, the Trustee, the Fiscal Agent, the Collateral Administrator, any Secured Party or the Holders of the Class A Notes Securities or any other Persons for any Losses (as defined below) incurred, or for any decrease in the value of the Collateral or the Class A NotesAssets, as a result of the actions taken or recommended, or for any omissions, by the Collateral Manager or its Affiliates or their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, stockholders, employees or agents under this AgreementAgreement or the Indenture, except (i) by reason of acts or omissions constituting which have been determined in a final judicial proceeding to constitute bad faith, fraud, willful misconduct or gross negligence in the performance of of, or reckless disregard with respect to, its obligations hereunder and under hereunder; or (ii) that arise out of or are based upon any Collateral Manager Information in the applicable terms Offering Circular that contains any untrue statement of a material fact or omits to state a material fact necessary in order to make any statements in the Collateral Manager Information in the final Offering Circular as of the Indenturedate hereof, in light of the circumstances under which they were made, not misleading, as determined in a final judicial proceeding (each, a “Collateral Manager Breach”). United States federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith and nothing contained herein will constitute a waiver or limitation of any rights which the Issuer or any holder of Securities may have under any applicable federal or state securities laws. Notwithstanding anything in this Agreement or the Indenture to the contrary, any obligation of the Collateral Manager to apply commercially reasonable efforts in purchasing and disposing of Collateral Obligations and Eligible Investments and the performance of its other duties under this Agreement and the Indenture shall permit the Collateral Manager to take into account its investment decision-making process and any other considerations it deems appropriate. It is understood in connection with the foregoing provisions and any other provision of this Agreement and any other Transaction Document (including the Indenture) applicable to the Collateral Manager, that the Collateral Manager is not required to make any independent investigation of any laws or regulations or interpretations thereof that may affect or be applicable to the holders of the Securities. The Collateral Manager and its Affiliates and their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, stockholders, employees and agents shall be entitled to indemnification by the Issuer in accordance with Section 10(b) and the Priority of Payments Notwithstanding anything to the contrary in this Agreement or in the Indenture, in no event shall the Collateral Manager or its Affiliates be liable for special, indirect, consequential or punitive damages.
(b) To the maximum extent allowed under applicable law, including, without limitation, as applicable, ERISA, the Issuer shall indemnify and hold harmless (the Issuer, in such case the “Indemnifying Party”) the Collateral Manager and its Affiliates and their respective principals, partners, members, stockholders, directors, managers, managing directors, officers, employees and agents (each, an “Indemnified Party”) from and against any and all expenses, losses, damages, liabilities, demands, charges or claims of any nature whatsoever (including reasonable attorneys’ fees and expenses) (collectively, “Losses”), as incurred, in respect of or arising from (i) the issuance of the Securities, (ii) the transactions described in the final Offering Circular, the Indenture, this Agreement or the Transaction Documents, (iii) any action or failure to act by any Indemnified Party, or (iv) in respect of any untrue statement or alleged untrue statement of a material fact contained in the Offering Circular, or any omission or alleged omission to state a material fact necessary to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading; provided that with respect to the foregoing indemnity, the Issuer shall not be liable for any Losses that arise out of or are based upon any Collateral Manager Breach. The obligations of the Issuer under this Section 10 to indemnify any Indemnified Party for any Losses will be payable solely out of the Assets in accordance with the Priority of Payments. Notwithstanding anything to the contrary in this Agreement or the Indenture, in no event will the Collateral Manager or its Affiliate be liable for special, direct, consequential or punitive damages. The foregoing provisions, however, shall not be construed to relieve any person of any liability to the extent that such liability may not be waived, modified or limited under applicable law. An Indemnified Party shall (or with respect to the Collateral Manager’s Affiliates and the principals, partners, members, stockholders, directors, managers, managing directors, officers, employees and agents of the Collateral Manager and its Affiliates, the Collateral Manager shall cause such Indemnified Party to) notify promptly the Indemnifying Party if the Indemnified Party receives a complaint, claim, compulsory process or other notice of any loss, claim, damage or liability giving rise to a claim for indemnification under this Section 10, but failure so to notify the Indemnifying Party (i) shall not relieve such Indemnifying Party from its obligations under this Section 10 unless and to the extent that it did not otherwise learn of such action or proceeding and to the extent such failure results in the forfeiture by the Indemnifying Party of substantial rights and defenses and (ii) shall not, in any event, relieve the Indemnifying Party of any obligations to any Person entitled to indemnity pursuant to this Section 10 other than the indemnification obligations provided for in this Section 10.
(c) With respect to any claim made or threatened against an Indemnified Party, or compulsory process or request served upon such Indemnified Party for which such Indemnified Party is or may be entitled to indemnification under this Section 10, such Indemnified Party shall (or with respect to the Collateral Manager’s Affiliates and the principals, partners, members, stockholders, directors, managers, managing directors, officers, employees and agents of the Collateral Manager and its Affiliates, the Collateral Manager shall cause such Indemnified Party to), at the Indemnifying Party’s expense:
(i) provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, but not limited to, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(ii) cooperate and take all such steps as the Indemnifying Party may reasonably request to preserve and protect any defense to such claim;
(iii) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim and, to the extent that it shall wish, to assume the defense thereof, with counsel satisfactory to such Indemnified Party (who shall not, except with the consent of the Indemnified Party, be counsel to the Indemnifying Party), and, after notice from the Indemnifying Party to such Indemnified Party of its election to so assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under such subsection for any legal expenses of other counsel or any other expenses directly related to the defense thereof, in each case subsequently incurred by such Indemnified Party, other than reasonable costs of investigation;
(iv) neither incur any material expense to defend against any such claim nor make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make which would expose such Indemnified Party to (A) unindemnified liability or (B) any liability in respect of which, in the good faith determination of such Indemnified Party, the Indemnifying Party is unlikely to have sufficient funds available to indemnify the Indemnified Party in full, taking into account the priorities set forth in Article XI of the Indenture) without the prior written consent of the Indemnifying Party; provided that the Indemnifying Party shall have advised such Indemnified Party that such Indemnified Party is entitled to be indemnified hereunder with respect to such claim; and
(v) without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, neither release, settle or compromise any claim giving rise to a claim for indemnity hereunder, nor permit a default or consent to the entry of any judgment in respect thereof, unless such settlement, compromise or consent includes, as an unconditional term thereof, the giving by the claimant to the Indemnifying Party of a release from liability substantially equivalent to the release given by the claimant to such Indemnified Party in respect of such claim; provided that such Indemnified Party shall not be required to seek or obtain such consent if it determines in good faith, that the Indemnifying Party is unlikely to have sufficient funds available to indemnify it in full, taking into account the priorities set forth in Article XI of the Indenture; provided that the Indemnifying Party shall have advised such Indemnified Party that such Indemnified Party is entitled to be indemnified hereunder with respect to such claim.
(d) In the event that any Indemnified Party expressly waives in writing its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 1 contract
Samples: Collateral Management Agreement (Carlyle GMS Finance, Inc.)
Limits of Collateral Manager Responsibility; Indemnification. (a) The Collateral Manager assumes no responsibility under this Agreement other than to render the services called for hereunder and under the terms of the Indenture applicable to it with reasonable care and in good faith and, subject to the standard of conduct described in the next succeeding sentence, shall not be responsible for any action of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Collateral Manager and its Affiliates and their respective members, managers, directors, officers, stockholders, employees and agents shall not be liable to the Issuer, the Trustee, any Secured Party or the Holders of the Class A Notes or any other Persons for any Losses (as defined below) incurred, or for any decrease in the value of the Collateral or the Class A Notes, as a result of the actions taken or recommended, or for any omissions, by the Collateral Manager or its Affiliates or their respective members, managers, directors, officers, stockholders, employees or agents under this Agreement, except by reason of acts or omissions constituting bad faith, fraud, willful misconduct or gross negligence in the performance of its obligations hereunder and under the applicable terms of the Indenture. Notwithstanding anything in this Agreement or the Indenture to the contrary, any obligation of the Collateral Manager to apply commercially reasonable efforts in purchasing and disposing of Collateral Obligations and Eligible Investments and the performance of its other duties under this Agreement shall permit the Collateral Manager to take into account its investment decision-making process and any other considerations it deems appropriate. The Collateral Manager and its Affiliates and their respective members, managers, directors, officers, stockholders, employees and agents shall be entitled to indemnification by the Issuer in accordance with Section 10(b) and the Priority of Payments. The Collateral Manager shall indemnify and hold harmless (the Collateral Manager, in such case the “Indemnifying Party”) the Issuer and its Affiliates and their respective members, managers, directors, officers, stockholders, employees and agents (each, an “Indemnified Party”) from and against any and all expenses, losses, damages, liabilities, demands, charges or claims of any nature whatsoever (including reasonable attorneys’ fees and expenses) (collectively, “Losses”), as incurred, in respect of or arising from acts or omissions constituting, and determined in a final judicial proceeding to constitute, bad faith, fraud, willful misconduct or gross negligence in the performance by the Collateral Manager of its obligations hereunder and under the applicable terms of the Indenture.
(b) The Issuer shall indemnify and hold harmless (the Issuer, in such case the “Indemnifying Party”) the Collateral Manager and its Affiliates and their respective members, managers, directors, officers, stockholders, employees and agents (each, an “Indemnified Party”) from and against any and all Losses, as incurred, in respect of or arising from (i) the issuance of the Class A Notes, (ii) the transactions described in the Indenture or this Agreement, or (iii) any action or failure to act by any Indemnified Party which has not been determined in a final judicial proceeding to constitute bad faith, fraud, willful misconduct or gross negligence of the Collateral Manager’s duties under this Agreement or the Indenture. The obligations of the Issuer under this Section 10 to indemnify any Indemnified Party for any Losses will be payable solely out of the Collateral in accordance with the Priority of Payments. The foregoing provisions, however, shall not be construed to relieve any Person of any liability to the extent that such liability may not be waived, modified or limited under applicable law.
(c) An Indemnified Party shall (or with respect to the Collateral Manager’s Affiliates and the members, managers, directors, officers, stockholders, employees and agents of the Collateral Manager and its Affiliates, the Collateral Manager shall cause such Indemnified Party to) promptly notify the Indemnifying Party if the Indemnified Party receives a complaint, claim, compulsory process or other notice of any loss, claim, damage or liability giving rise to a claim for indemnification under this Section 10, but failure so to notify the Indemnifying Party (i) shall not relieve such Indemnifying Party from its obligations under Section 10(b) unless and to the extent that it did not otherwise learn of such action or proceeding and to the extent such failure results in the forfeiture by the Indemnifying Party of substantial rights and defenses and (ii) shall not, in any event, relieve the Indemnifying Party of any obligations to any Person entitled to indemnity pursuant to Section 10(b) other than the indemnification obligations provided for in Section 10(b).
(d) With respect to any claim made or threatened against an Indemnified Party, or compulsory process or request served upon such Indemnified Party for which such Indemnified Party is or may be entitled to indemnification under this Section 10, such Indemnified Party shall (or with respect to the Collateral Manager’s Affiliates and the members, managers, directors, officers, stockholders, employees and agents of the Collateral Manager and its Affiliates, the Collateral Manager shall cause such Indemnified Party to), at the Indemnifying Party’s expense:
(i) give written notice to the Indemnifying Party of such claim within ten (10) days after such claim is made or threatened, which notice shall specify in reasonable detail the nature of the claim and the amount (or an estimate of the amount) of the claim; provided, that failure to give notice shall not relieve the Indemnifying Party of its obligation hereunder, unless the Indemnifying Party is materially prejudiced or otherwise forfeits substantial rights or defenses by reason of such failure;
(ii) provide the Indemnifying Party such information and cooperation with respect to such claim as the Indemnifying Party may reasonably require, including, but not limited to, making appropriate personnel available to the Indemnifying Party at such reasonable times as the Indemnifying Party may request;
(iii) cooperate and take all such steps as the Indemnifying Party may reasonably request to preserve and protect any defense to such claim;
(iv) in the event suit is brought with respect to such claim, upon reasonable prior notice, afford to the Indemnifying Party the right, which the Indemnifying Party may exercise in its sole discretion and at its expense, to participate in the investigation, defense and settlement of such claim;
(v) neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make which would expose such Indemnified Party to unindemnified liability) without the prior written consent of the Indemnifying Party; provided, that the Indemnifying Party shall have advised such Indemnified Party that such Indemnified Party is entitled to be indemnified hereunder with respect to such claim; and
(vi) upon reasonable prior notice, afford to the Indemnifying Party the right, in its sole discretion and at its sole expense, to assume the defense of such claim, including, but not limited to, the right to designate counsel and to control all negotiations, litigation, arbitration, settlements, compromises and appeals of such claim; provided, that if the Indemnifying Party assumes the defense of such claim, it shall not be liable for any fees and expenses of counsel for any Indemnified Party incurred thereafter in connection with such claim except that if such Indemnified Party reasonably determines that counsel designated by the Indemnifying Party has a conflict of interest, such Indemnifying Party shall pay the reasonable fees and disbursements of one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; provided, further, that prior to entering into any final settlement or compromise, such Indemnifying Party shall seek the consent of the Indemnified Party and use its best efforts in the light of the then prevailing circumstances (including, without limitation, any express or implied time constraint on any pending settlement offer) to obtain the consent of such Indemnified Party as to the terms of settlement or compromise. If an Indemnified Party does not consent to the settlement or compromise within a reasonable time under the circumstances and such settlement or compromise includes a full release of all claims and does not include any admission of liability or wrongdoing by the Indemnified Party, the Indemnifying Party shall not thereafter be obligated to indemnify the Indemnified Party for any amount in excess of such proposed settlement or compromise.
(e) No Indemnified Party shall, without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, settle or compromise any claim giving rise to a claim for indemnity hereunder, or permit a default or consent to the entry of any judgment in respect thereof, unless such settlement, compromise or consent includes, as an unconditional term thereof, the giving by the claimant to the Indemnifying Party of a release from liability substantially equivalent to the release given by the claimant to such Indemnified Party in respect of such claim.
(f) In the event that any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any costs of counsel to such Indemnified Party.
Appears in 1 contract
Samples: Collateral Management Agreement
