Limits of Collateral Manager Responsibility. 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 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 Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders of the Notes, the Preferred Shareholders or any other person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the Collateral, except, in the case of the Collateral Manager, (A) by reason of acts constituting bad faith, willful misconduct, fraud or gross negligence in the performance of, or reckless disregard of, its duties hereunder and under the terms of the Indenture and (B) with respect to information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.
Appears in 5 contracts
Samples: Collateral Management Agreement, Collateral Management Agreement (Taberna Realty Finance Trust), Collateral Management Agreement (Taberna Realty Finance Trust)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates and their respective Related Persons shall not be liable to the Issuer, the Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 3 contracts
Samples: Collateral Management Agreement (Blue Owl Capital Corp), Collateral Management Agreement (Blue Owl Credit Income Corp.), Collateral Management Agreement (Blue Owl Capital Corp III)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the IssuerIssuers, the Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Placement Agent, any of their respective Affiliates or Related Persons or any other person Person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, settlementjudgements, assessments, settlement cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 3 contracts
Samples: Collateral Management Agreement (Owl Rock Capital Corp), Collateral Management Agreement (Owl Rock Capital Corp), Collateral Management Agreement (Owl Rock Capital Corp)
Limits of Collateral Manager Responsibility. The (a) In rendering the services called for hereunder and under the terms of the Credit Agreement applicable to the Collateral Manager, the Collateral Manager assumes no responsibility under this Agreement other than to render the services called for perform its duties and obligations hereunder and under the terms of the Indenture Credit Agreement applicable to it in good faith and, subject to the standard of conduct described except as set forth in the next succeeding sentence, shall not be responsible for any action or inaction of the Issuer Borrower, the Collateral Agent, the Collateral Administrator or the Trustee Administrative Agent in following or declining to follow any advice, recommendation direction or direction advice of the Collateral Manager. The Indemnified Parties None of the Collateral Manager, its Affiliates and their respective partners, members, managers, stockholders, directors, officers, employees, personnel and agents (as defined beloweach an “Collateral Manager Party”) shall not will be liable to the IssuerBorrower, the TrusteeAdministrative Agent, the Holders of the NotesCollateral Agent, the Preferred Shareholders Lenders or any other person Person for any act, omission, error of judgment, mistake of lawLosses incurred (including reasonable attorneys’ and accountants’ fees and expenses), or for any claimdecrease in the value of the Collateral as a result of, loss, liability, damage, settlement, cost, the actions taken or other expense (including attorneys’ fees and expenses and court costs) arising out of any investmentrecommended, or for any other act omissions (including, with respect to the Collateral Agent, the Collateral Administrator, the Administrative Agent or omission in the performance of any Lender, any failure to timely grant any consent requested by the Collateral Manager’s obligations ) by, the Collateral Manager, its Affiliates or their respective partners, members, managers, stockholders, directors, officers, employees, personnel or agents under or in connection with this Agreement or the terms of any other Transaction Document the Credit Agreement applicable to it, except that the Collateral Manager, incurred Manager shall be so liable as a result of actions taken or recommended or and to the extent specified in Section 10(b)(ii) for any omissions of the Collateral Manager, or for any decrease in the value of the Collateral, except, in the case of the Collateral Manager, such Losses that arise (Ai) by reason of acts any act or omission of the Collateral Manager constituting bad faith, willful misconduct, fraud or gross negligence or fraud by the Collateral Manager in the performance of, or reckless disregard ofby the Collateral Manager with respect to, its duties the obligations of the Collateral Manager hereunder and under the terms of the Indenture and (B) with respect Credit Agreement applicable to information concerning the Collateral Manager provided as determined in writing a final non-appealable judgment by a court of competent jurisdiction or (ii) by any material breach of the representations and warranties of the Collateral Manager expressly for inclusion set forth in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees Section 16 (each, a “Collateral Manager Breach”); provided that, no Collateral Manager Party shall be liable to the Borrower, the Collateral Agent, the Collateral Administrator, the Administrative Agent, the Lenders or any other Person for any consequential (including loss of profit), indirect, special or punitive damages under this Agreement or the Credit Agreement or any other Loan Document.
(i) The Borrower shall indemnify and hold harmless (the Borrower in such case, the “Indemnifying Party”) the Collateral Manager, its Affiliates and their respective partners, members, managers, stockholders, directors, officers, employees, personnel and agents (in each such case, an “Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) Losses arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading)Loans, the transactions contemplated by the Offering Circularthis Agreement, the Indenture Credit Agreement or this Agreement and any other Loan Document or any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall the Borrower will not be indemnified liable for any Losses or Expenses to the extent that such Losses are incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more a Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. Breach.
(ii) The Collateral Manager shall indemnify and hold harmless (the Issuer and Collateral Manager in such case, the Placement Agent “Indemnifying Party”) the Borrower, its Affiliates and their respective Affiliates (and each of their partners, members, managers, stockholders, directors, officers, stockholdersemployees and agents (any such party in each such case, partners, members, agents and employees) (each, an the “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more a Collateral Manager BreachesBreach; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall Collateral Manager will not be indemnified liable for any Losses or Expenses to the extent that such Losses are incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of fraud by such Issuer Indemnified Party hereunder or under the terms of any other Transaction Loan Document applicable to it. For purposes No partners, members, managers, stockholders, directors, officers, employees or agents of the Collateral Manager shall be liable for the Collateral Manager’s obligations hereunder.
(c) If for any reason the indemnity provided for in this Section 10 is unavailable, then the Indemnifying Party shall contribute to the amount paid or payable by the Indemnified Party as a result of any Losses in such proportion as is appropriate to reflect the relative benefits received by the Indemnifying Party on the one hand and the Indemnified Party on the other hand.
(d) An Indemnified Party shall (or, with respect to the Collateral Manager’s partners, members, managers, stockholders, directors, officers, employees, personnel and agents, the Collateral Manager shall cause such Indemnified Party to) within ten (10) Business Days of receiving notice thereof, 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 or to comply with Section 10 shall not relieve such Indemnifying Party from its obligations under this Section 10 unless and to the extent that such failure results in the forfeiture by the Indemnifying Party of substantial rights and defenses.
(e) 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 partners, members, managers, stockholders, directors, officers, employees, personnel and agents, the Collateral Manager shall cause such Indemnified Party to):
(i) at the Indemnifying Party’s expense, provide the Indemnifying Party with 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) 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;
(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 reasonably 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 so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party for any legal expenses of other counsel or any other expenses, in each Placement Agent case subsequently incurred by such Indemnified Party, in connection with the defense thereof unless such Indemnified Party reasonably determines that counsel selected by the Indemnifying Party has a conflict of interest due to conflicting interests of the Indemnifying Party and the Indemnified Party, in which case such Indemnifying Party shall pay the reasonable fees and disbursements of one additional counsel selected by the Indemnified Party (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; and
(iv) 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 admission or factual admissions the failure to make that could 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 (where the Indemnifying Party is the Borrower) the Priority of Payments set forth in Section 9.1 of the Credit Agreement)) 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.
(f) No Indemnified Party shall, without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, 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; 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 (where the Indemnifying Party is the Borrower) the Priority of Payments set forth in Section 9.1 of the Credit Agreement.
(g) Notwithstanding anything to the contrary herein, no Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed, settle or compromise any claim giving rise to a claim for indemnity hereunder if such settlement includes a statement as to or an express third party beneficiary admission of fault, culpability or a failure to act by or on behalf of an Indemnified Party.
(h) The Collateral Manager shall not be responsible or liable for any failure or delay in the performance of its duties and obligations under this Agreement and/or the Credit Agreement arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(i) It is understood that certain provisions of this AgreementAgreement may serve to limit the potential liability of the Collateral Manager. The Borrower has had the opportunity to consult with the Collateral Manager as well as, if desired, its professional advisors and legal counsel as to the effect of these provisions. It is further understood that certain applicable laws, including applicable federal or state securities laws, may impose liability or allow for legal remedies even where the Collateral Manager has acted in good faith and that the rights under those laws may be non-waivable. Nothing in this Agreement shall, in any way, constitute a waiver or limitation of any rights which may not be so limited or waived in accordance with applicable law, including with respect to the breach of any fiduciary duty owed under Section 206 of the Advisers Act.
Appears in 2 contracts
Samples: Collateral Management Agreement (AB Private Credit Investors Corp), Collateral Management Agreement (AB Private Credit Investors Corp)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its affiliates, its Owners or their respective Related Persons nor any Independent Review Party assumes no any responsibility under this Agreement other than the Collateral Manager assumes responsibility to render the services called for hereunder required to be performed by it hereunder, and under the terms of the Indenture and the Master Loan Sale Agreement applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any Holder of the Notes, any holder of Interests, the Preferred Shareholders Placement Agent, any of their respective affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager shall be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager Manager, its affiliates and its Affiliates Owners and their respective Related Persons and each of their directorsIndependent Review Party, officersif any, shareholders, partners, members, agents and employees (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Offering Circular Circulars, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than Collateral Manager Information), the transactions contemplated by the Offering CircularCirculars, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.
Appears in 2 contracts
Samples: Collateral Management Agreement (NewStar Financial, Inc.), Collateral Management Agreement (NewStar Financial, Inc.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its affiliates, its Owners or their respective Related Persons nor any Independent Review Party assumes no any responsibility under this Agreement other than the Collateral Manager assumes responsibility to render the services called for hereunder required to be performed by it hereunder, and under the terms of the Indenture and the Master Loan Sale Agreement applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any Holder of the Notes, any holder of Interests, the Preferred Shareholders Initial Purchaser, any of their respective affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager shall be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager Manager, its affiliates and its Affiliates Owners and their respective Related Persons and each of their directorsIndependent Review Party, officersif any, shareholders, partners, members, agents and employees (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Offering Circular Circulars, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than Collateral Manager Information), the transactions contemplated by the Offering CircularCirculars, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.
Appears in 2 contracts
Samples: Collateral Management Agreement, Collateral Management Agreement (NewStar Financial, Inc.)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates and their respective Related Persons shall not be liable to the Issuer, the Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Placement Agent, any of their respective Affiliates or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 2 contracts
Samples: Collateral Management Agreement (Blue Owl Credit Income Corp.), Collateral Management Agreement (Blue Owl Credit Income Corp.)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the IssuerIssuers, the Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates or Related Persons or any other person Person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, settlementjudgements, assessments, settlement cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 2 contracts
Samples: Collateral Management Agreement (Owl Rock Capital Corp), Collateral Management Agreement (Owl Rock Capital Corp)
Limits of Collateral Manager Responsibility. (a) The Collateral Manager assumes no responsibility under this Agreement other than to render the services called for expressly required to be performed by it hereunder and under the terms other Transaction Documents in accordance with the Collateral Manager Standard. None of the Indenture applicable to it in good faith andCollateral Manager’s Affiliates, subject to Owners or their respective Related Persons nor any Independent Review Party assumes any responsibility under this Agreement. None of the standard of conduct described in the next succeeding sentenceCollateral Manager, its Affiliates, its Owners or their respective Related Persons nor any Independent Review Party assumes any responsibility under this Agreement other than The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the IssuerCo-Issuers, the Trustee, the Holders of the NotesCollateral Agent, the Loan Agent, the Fiscal Agent, any Holder of Secured Debt, any holder of Preferred Shareholders Shares, the Placement Agent, the Co-Structuring Agent, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager shall be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Offering Circular Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any indirect, incidental, consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture regardless of whether such losses or damages are foreseeable and regardless of the form of action. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and Owners and their respective Related Persons and each of their directors, officers, shareholders, partners, members, agents and employees Independent Review Party (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Secured Debt (including, without limitation, any untrue statement of material fact contained in the Offering Circular or any offering circular which supersedes or supplements the Offering Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than Collateral Manager Offering Circular Information), the transactions contemplated by the Offering Circular or any offering circular which supersedes or supplements the Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Breach.
(c) Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. The , and shall be subject to the terms of Section 25 hereof.
(d) Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Agreement shall not be construed so as to provide for the exculpation of the Collateral Manager or the indemnification of the Issuer, Co-Issuer or the Collateral Manager for any liability (including liability under United States federal securities laws), to the extent (but only to the extent) that such liability may not be waived, modified or limited under applicable law or such indemnification may not be demanded under applicable law, but shall indemnify and hold harmless otherwise be construed so as to effectuate the Issuer and provisions of this Agreement to the Placement Agent and their respective Affiliates fullest extent permitted by applicable law.
(and each of their directorse) In providing services under this Agreement, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses the Collateral Manager may rely in good faith upon and will promptly reimburse each such Issuer Indemnified Party be fully protected and incur no liability for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out relying upon advice of nationally recognized counsel, accountants or other advisers as the Collateral Manager determines, in its sole discretion, is reasonably appropriate in connection with one or more the services provided by the Collateral Manager Breaches; provided, that if such Issuer under this Agreement.
(f) No Indemnified Party is shall, without the Issuerprior written consent of the Indemnifying Party, such Issuer Indemnified Party which consent shall not be indemnified unreasonably withheld or delayed, settle or compromise any claim giving rise to a claim for any Losses indemnity hereunder, or Expenses incurred as permit a result default or consent to the entry of any acts judgment in respect thereof, unless such settlement, compromise or omissions 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 Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations in respect of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementclaim.
Appears in 2 contracts
Samples: Collateral Management Agreement, Collateral Management Agreement (PennantPark Floating Rate Capital Ltd.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its affiliates, its Owners or their respective Related Persons nor any Independent Review Party assumes no any responsibility under this Agreement other than the Collateral Manager assumes responsibility to render the services called for hereunder required to be performed by it hereunder, and under the terms of the Indenture and the Master Loan Sale Agreement applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any Holder of the Notes, any Holder of Interests, the Preferred Shareholders Initial Purchaser, the Placement Agents, any of their respective affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager shall be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager Manager, its affiliates and its Affiliates Owners and each of their directorsrespective Related Persons and the Independent Review Party, officersif any, shareholders, partners, members, agents and employees (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Offering Circular Circulars, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than Collateral Manager Information), the transactions contemplated by the Offering CircularCirculars, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this AgreementPayments.
Appears in 2 contracts
Samples: Collateral Management Agreement (NewStar Financial, Inc.), Collateral Management Agreement (NewStar Financial, Inc.)
Limits of Collateral Manager Responsibility. The (a) In rendering the services called for hereunder and under the terms of the Credit Agreement applicable to the Collateral Manager, the Collateral Manager assumes no responsibility under this Agreement other than to render the services called for perform its duties and obligations hereunder and under the terms of the Indenture Credit Agreement applicable to it in good faith and, subject to the standard of conduct described except as set forth in the next succeeding sentence, shall not be responsible for any action or inaction of the Issuer Borrower, the Collateral Agent, the Collateral Administrator, the Custodian or the Trustee Administrative Agent in following or declining to follow any advice, recommendation direction or direction advice of the Collateral Manager. The Indemnified Parties None of the Collateral Manager, its Affiliates and their respective partners, members, managers, stockholders, directors, officers, employees, personnel and agents (as defined beloweach an “Collateral Manager Party”) shall not will be liable to the IssuerBorrower, the TrusteeAdministrative Agent, the Holders of the NotesCustodian, the Preferred Shareholders Collateral Agent, the Lenders or any other person Person for any act, omission, error of judgment, mistake of lawLosses incurred (including reasonable attorneys’ and accountants’ fees and expenses), or for any claimdecrease in the value of the Collateral as a result of, loss, liability, damage, settlement, cost, the actions taken or other expense (including attorneys’ fees and expenses and court costs) arising out of any investmentrecommended, or for any other act omissions (including, with respect to the Collateral Agent, the Collateral Administrator, the Custodian, the Administrative Agent or omission in the performance of any Lender, any failure to timely grant any consent requested by the Collateral Manager’s obligations ) by, the Collateral Manager, its Affiliates or their respective partners, members, managers, stockholders, directors, officers, employees, personnel or agents under or in connection with this Agreement or the terms of any other Transaction Document the Credit Agreement applicable to it, except that the Collateral Manager, incurred Manager shall be so liable as a result of actions taken or recommended or and to the extent specified in Section 10(b)(ii) for any omissions of the Collateral Manager, or for any decrease in the value of the Collateral, except, in the case of the Collateral Manager, such Losses that arise (Ai) by reason of acts any act or omission of the Collateral Manager constituting bad faith, willful misconduct, fraud or gross negligence or fraud by the Collateral Manager in the performance of, or reckless disregard ofby the Collateral Manager with respect to, its duties the obligations of the Collateral Manager hereunder and under the terms of the Indenture and (B) with respect Credit Agreement applicable to information concerning the Collateral Manager provided as determined in writing a final non-appealable judgment by a court of competent jurisdiction or (ii) by any material breach of the representations and warranties of the Collateral Manager expressly for inclusion set forth in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees Section 16 (each, a “Collateral Manager Breach”); provided that, no Collateral Manager Party shall be liable to the Borrower, the Collateral Agent, the Collateral Administrator, the Custodian, the Administrative Agent, the Lenders or any other Person for any consequential (including loss of profit), indirect, special or punitive damages under this Agreement or the Credit Agreement or any other Loan Document.
(i) The Borrower shall indemnify and hold harmless (the Borrower in such case, the “Indemnifying Party”) the Collateral Manager, its Affiliates and their respective partners, members, managers, stockholders, directors, officers, employees, personnel and agents (in each such case, an “Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) Losses arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading)Loans, the transactions contemplated by the Offering Circularthis Agreement, the Indenture Credit Agreement or this Agreement and any other Loan Document or any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall the Borrower will not be indemnified liable for any Losses or Expenses to the extent that such Losses are incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more a Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. Breach.
(ii) The Collateral Manager shall indemnify and hold harmless (the Issuer and Collateral Manager in such case, the Placement Agent “Indemnifying Party”) the Borrower, its Affiliates and their respective Affiliates (and each of their partners, members, managers, stockholders, directors, officers, stockholdersemployees and agents (any such party in each such case, partners, members, agents and employees) (each, an the “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more a Collateral Manager BreachesBreach; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall Collateral Manager will not be indemnified liable for any Losses or Expenses to the extent that such Losses are incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of fraud by such Issuer Indemnified Party hereunder or under the terms of any other Transaction Loan Document applicable to it. For purposes No partners, members, managers, stockholders, directors, officers, employees or agents of the Collateral Manager shall be liable for the Collateral Manager’s obligations hereunder.
(c) If for any reason the indemnity provided for in this Section 10 is unavailable, then the Indemnifying Party shall contribute to the amount paid or payable by the Indemnified Party as a result of any Losses in such proportion as is appropriate to reflect the relative benefits received by the Indemnifying Party on the one hand and the Indemnified Party on the other hand.
(d) An Indemnified Party shall (or, with respect to the Collateral Manager’s partners, members, managers, stockholders, directors, officers, employees, personnel and agents, the Collateral Manager shall cause such Indemnified Party to) within ten (10) Business Days of receiving notice thereof, 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 or to comply with Section 10 shall not relieve such Indemnifying Party from its obligations under this Section 10 unless and to the extent that such failure results in the forfeiture by the Indemnifying Party of substantial rights and defenses.
(e) 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 partners, members, managers, stockholders, directors, officers, employees, personnel and agents, the Collateral Manager shall cause such Indemnified Party to):
(i) at the Indemnifying Party’s expense, provide the Indemnifying Party with 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) 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;
(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 reasonably 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 so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party for any legal expenses of other counsel or any other expenses, in each Placement Agent case subsequently incurred by such Indemnified Party, in connection with the defense thereof unless such Indemnified Party reasonably determines that counsel selected by the Indemnifying Party has a conflict of interest due to conflicting interests of the Indemnifying Party and the Indemnified Party, in which case such Indemnifying Party shall pay the reasonable fees and disbursements of one additional counsel selected by the Indemnified Party (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; and
(iv) 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 admission or factual admissions the failure to make that could 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 (where the Indemnifying Party is the Borrower) the Priority of Payments set forth in Section 9.1 of the Credit Agreement)) 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.
(f) No Indemnified Party shall, without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, 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; 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 (where the Indemnifying Party is the Borrower) the Priority of Payments set forth in Section 9.1 of the Credit Agreement.
(g) Notwithstanding anything to the contrary herein, no Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed, settle or compromise any claim giving rise to a claim for indemnity hereunder if such settlement includes a statement as to or an express third party beneficiary admission of fault, culpability or a failure to act by or on behalf of an Indemnified Party.
(h) The Collateral Manager shall not be responsible or liable for any failure or delay in the performance of its duties and obligations under this Agreement and/or the Credit Agreement arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(i) It is understood that certain provisions of this AgreementAgreement may serve to limit the potential liability of the Collateral Manager. The Borrower has had the opportunity to consult with the Collateral Manager as well as, if desired, its professional advisors and legal counsel as to the effect of these provisions. It is further understood that certain applicable laws, including applicable federal or state securities laws, may impose liability or allow for legal remedies even where the Collateral Manager has acted in good faith and that the rights under those laws may be non-waivable. Nothing in this Agreement shall, in any way, constitute a waiver or limitation of any rights which may not be so limited or waived in accordance with applicable law, including with respect to the breach of any fiduciary duty owed under Section 206 of the Advisers Act.
Appears in 2 contracts
Samples: Collateral Management Agreement (AB Private Lending Fund), Collateral Management Agreement (AB Private Credit Investors Corp)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than except that the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any Holder, any beneficial owner of the Notes, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided CM Information in writing by the Collateral Manager expressly for inclusion in the each Offering Circular, such information as of the date made, containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, indirect, special, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. The Collateral Manager and any of its Affiliates may consult with counsel, independent accountants or any other experts selected by them and shall not be liable for any action taken or omitted to be taken by them in accordance with their advice. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and each of Owners and their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the each Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than CM Information), the transactions contemplated by the applicable Offering Circular, the Indenture or Indenture, this Agreement Agreement, the other Transaction Documents, any Underlying Instruments and the performance of the Assets and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture.
(c) It is understood that certain provisions of this Agreement may serve to limit the potential liability of the Collateral Manager. The Issuer has had the opportunity to consult with the Collateral Manager shall indemnify as well as, if desired, its professional advisors and hold harmless legal counsel as to the Issuer effect of these provisions. It is further understood that certain applicable laws, including applicable federal or state securities laws, may impose liability or allow for legal remedies even where the Collateral Manager has acted in good faith and that the Placement Agent and their respective Affiliates (and each rights under those laws may be non-waivable. Nothing in this Agreement shall, in any way, constitute a waiver or limitation of their directorsany rights which may not be so limited or waived in accordance with applicable law, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party including with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is to the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result breach of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard fiduciary duty owed under Section 206 of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this AgreementAdvisers Act.
Appears in 2 contracts
Samples: Collateral Management Agreement (GOLUB CAPITAL INVESTMENT Corp), Collateral Management Agreement (GOLUB CAPITAL BDC, Inc.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates or their respective Related Persons assumes no any responsibility under this Agreement Agreement, other than the Collateral Manager’s assumption of its responsibility to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith andfaith, subject to the standard Standard of conduct Care described in the next succeeding sentence, Section 2(a). The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager, including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders of the Notesany Holder, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates, or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of or with respect to any investment, investment or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under in which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(i) The Issuer shall indemnify and hold harmless (the Issuer in such case, the “Indemnifying Party”) the Collateral Manager and Manager, its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Offering Circular Circulars, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleadingmisleading other than the Collateral Manager Information), the transactions contemplated by the Offering CircularCirculars, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faitha Collateral Manager Breach. Notwithstanding anything contained herein to the contrary, willful misconduct, gross negligence or reckless disregard of the obligations of such the Issuer under this Section 10 to indemnify any Indemnified Party hereunder for any Losses or under Expenses are non-recourse obligations of the terms Issuer payable solely out of the Assets in accordance with the Priority of Payments set forth in the Indenture.
(i) The Collateral Manager shall indemnify and hold harmless (the Collateral Manager in such case, the “Indemnifying Party”) the Issuer, its Affiliates and their respective Related Persons (each such party being, in such case, an “Indemnified Party”) from and against any and all Losses and shall promptly reimburse each such Indemnified Party for all reasonable Expenses as such Expenses are incurred in investigating, preparing, pursuing or defending any Actions in respect of or arising out of any Collateral Manager Breaches; provided, however, that the Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits.
(c) An Indemnified Party shall (or, with respect to the Related Persons of the Collateral Manager or of the Issuer, as applicable, the Collateral Manager or the Issuer, as applicable, shall cause such Indemnified Party to) promptly notify the Indemnifying Party if the Indemnified Party receives a complaint, claim, compulsory process or other Transaction Document applicable notice of any Loss giving rise to it. For purposes of a claim for indemnification under this Section 10, but failure so to notify the Indemnifying Party or to comply with paragraph (d) below shall not relieve such Indemnifying Party from its obligations under this Section 10 unless and to the extent that such Indemnifying Party did not otherwise learn of such action or proceeding and to the extent such failure results in the forfeiture by the Indemnifying Party of material rights and defenses.
(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 Related Persons of the Collateral Manager or of the Issuer, as applicable, the Collateral Manager or the Issuer, as applicable, shall cause such Indemnified Party to):
(i) 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;
(ii) 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;
(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, (A) to participate in the investigation, defense and settlement of such claim, and, (B) 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 so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under such subsection for any legal fees and expenses of other counsel or any other expenses, in each Placement Agent case subsequently incurred by such Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation, except that, if such Indemnified Party reasonably determines that counsel selected by the Indemnifying Party has a conflict of interest, such Indemnifying Party shall pay the reasonable fees and disbursements of one additional counsel selected by the Indemnified Party (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; and
(iv) neither incur any material expense to defend against nor make any admission with respect thereto, nor permit a default or 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.
(e) No Indemnified Party shall, without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, 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; provided that if the Indemnified Party is the Collateral Manager or an express third party beneficiary Affiliate or a Related Person of the Collateral Manager or of an Affiliate thereof, 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 Priority of Payments.
(f) No Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, settle or compromise or consent to the entry of any judgment with respect to any claim giving rise to a claim for indemnity hereunder if such settlement includes a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.
(g) The compliance of the Collateral Manager’s actions with the provisions of the Indenture and this Agreement shall be determined on the date of action only, based upon the prices and characteristics of the Assets on the date of such action (or on the most recent date practicable, in the case of Collateral Obligations not purchased or sold on such date); provided that the provisions of the Indenture and this Agreement shall not be deemed breached as a result of changes in value, status or any other conditions of an investment following the date of such action and the Collateral Manager shall not be responsible under this Agreement for the performance of or any losses on the Assets acquired in accordance with this Agreement.
(h) The Assets shall be held by the Custodian appointed by the Issuer pursuant to the Indenture. The Collateral Manager and its Affiliates shall at no time have custody or physical control of the Assets. The Collateral Manager shall not be liable for any act or omission of the Collateral Administrator, the Trustee or any sub-custodian or other agent appointed by the Calculation Agent or the Issuer. Any compensation owed to the Collateral Administrator, the Trustee or the Calculation Agent for their services to the Issuer shall be the obligation of the Issuer and not the Collateral Manager.
Appears in 2 contracts
Samples: Collateral Management Agreement (KCAP Financial, Inc.), Collateral Management Agreement (TICC Capital Corp.)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Collateral Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the Issuer, the Collateral Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates or Related Persons or any other person Person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgements, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 2 contracts
Samples: Collateral Management Agreement (Owl Rock Core Income Corp.), Collateral Management Agreement (Owl Rock Capital Corp)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the IssuerIssuers, the Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates or Related Persons or any other person Person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, settlementjudgements, assessments, settlement cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 2 contracts
Samples: Collateral Management Agreement (Owl Rock Capital Corp), Collateral Management Agreement (Owl Rock Technology Finance Corp.)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective directors, officers, stockholders, partners, employees, and agents shall not be liable to the Issuer, the Trustee, the Holders of the Notes, the Preferred Shareholders or any other person Person for any act, omission, error of judgment, mistake of law, acts or for any claim, loss, liability, damage, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of omissions by the Collateral Manager’s obligations , its directors, officers, stockholders, partners, employees, Affiliates or agents under or in connection with this Agreement or the terms of any other Transaction Document the Indenture applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Managerit, or for any decrease in the value of the CollateralAssets, except, in the case of the Collateral Manager, (A) except by reason of (x) acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance ofperformance, or reckless disregard ofdisregard, its duties hereunder and of the obligations of the Collateral Manager under the terms of this Agreement and terms of the Indenture and applicable to it or (By) with respect to information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information Information containing any an untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements contained therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading, in each case, as determined pursuant to a final adjudication by a court of competition jurisdiction (clauses (x) and (y), collectively, “Collateral Manager Breaches”). The Issuer shall indemnify and hold harmless (the Issuer in such case, the “Indemnifying Party”) the Collateral Manager, its Affiliates, and their respective directors, officers, stockholders, partners, employees, and agents (other than any Affiliate in its capacity as a Holder) (such parties collectively in such case, the “Indemnified Parties”) from and against any and all expenses, losses, damages, liabilities, demands, charges and claims of any nature whatsoever (including reasonable attorneys’ and accountants’ fees and expenses)(collectively, “Losses”), related to the issuance or incurrence of the Secured Debt, the transactions contemplated by the Offering Circular, the Indenture or the performance of the Collateral Manager’s obligations under this Agreement and other than any acts or omissions of any such Losses resulting from a Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer shall be payable solely out of the Collateral Assets in accordance with the Priority of Payments priorities set forth in Article 11 of the Indenture. The Indenture and shall be subject to the terms of Section 32 hereof.
(b) An Indemnified Party shall (or with respect to an Indemnified Party other than the Collateral Manager, the Collateral Manager shall indemnify 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 and hold harmless give written notice to the Issuer 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 Placement Agent amount (or an estimate of the amount) of the claim but failure so to notify the Indemnifying Party (i) shall not relieve such Indemnifying Party from its obligations under paragraph (a) above unless and their respective Affiliates 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 (and each of their directorsii) shall not, officersin any event, stockholders, partners, members, agents and employeesrelieve the Indemnifying Party for any obligations to any Person entitled to indemnity pursuant to paragraph (a) above other than the indemnification obligations provided for in paragraph (each, a) above.
(c) With respect to any claim made or threatened against an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each , or compulsory process or request served upon such Issuer Indemnified Party for all Expenses incurred by an Issuer which such Indemnified Party is or may be entitled to indemnification under this Section 10, such Indemnified Party shall (or with respect to an Indemnified Party other than the Collateral Manager, 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;
(iv) neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto arising out (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 or 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) upon reasonable prior notice, afford to the Indemnifying Party the right, in connection with one or more Collateral Manager Breachesits 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 Issuer claim, it shall not be liable for any fees and expenses of counsel for any Indemnified Party is incurred thereafter in connection with such claim except that if such Indemnified Party reasonably determines that counsel designated by the IssuerIndemnifying Party has a conflict of interest, such Issuer 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; and 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, the Indemnifying Party shall not thereafter be obligated to indemnify the Indemnified Party for any amount in excess of such proposed settlement or compromise.
(d) 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.
(e) In the event that any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be indemnified entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any Losses or Expenses incurred as a result costs of any acts or omissions by counsel to such Issuer Indemnified Party that constitute bad Party.
(f) The U.S. federal securities laws impose liabilities under certain circumstances on persons who act in good faith; accordingly, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of notwithstanding any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary provision of this Agreement, nothing herein shall in any way constitute a waiver or limitation of any rights which the Issuer may have under any U.S. federal securities laws.
(g) Notwithstanding any other provision hereof to the contrary, (x) no provision of this Agreement shall constitute a waiver or limitation of rights that may not be limited or waived under applicable law and (y) this Agreement shall not be construed so as to provide for the indemnification or exculpation of the Issuer or the Collateral Manager or any of its Affiliates for any liability to the extent, but only to the extent, that such indemnification or exculpation would be in violation of applicable law (including U.S. federal securities laws which, under certain circumstances, impose liability without regard to whether actions were taken in good faith). Notwithstanding anything to the contrary expressly or by implication contained herein, the Collateral Manager assumes and will have no obligation or responsibility under this Agreement, the Indenture or any other transaction document or otherwise to any person other than the Issuer. With respect to the Issuer, the Collateral Manager assumes, and will have, no obligation or responsibility other than to render to it the services required to be rendered by the Collateral Manager under this Agreement as expressly provided herein and subject to the standard of care described in this Agreement. In particular, the Collateral Manager (a) will not be responsible for any action of the Issuer, the Trustee or any other Person in following or declining to follow any (i) direction or instruction of the Collateral Manager given by it pursuant to the authority, discretion and functions granted to it under this Agreement, or (ii) any recommendation or advice which may be given by the Collateral Manager in connection with matters relating to this Agreement and the transactions contemplated herein, (b) does not assume any fiduciary duty or responsibility with regard to the Issuer or otherwise, (c) does not guarantee or otherwise assume any responsibility for the performance of the Secured Debt or the Collateral Obligations and (d) does not guarantee or otherwise assume any responsibility for the performance by any third party of any contract entered into on behalf of the Issuer under this Agreement, the Indenture or any other transaction document. The Collateral Manager will not be required to indemnify the Issuer or any Holder of Secured Debt in respect of any liability described in clause 10(a)(x) or 10(a)(y) herein.
Appears in 1 contract
Samples: Collateral Management Agreement (AG Twin Brook Capital Income Fund)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than except that the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer Issuer, the Trustee, the Collateral Agent, or the Trustee Loan Agent in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders Collateral Agent, any Holder, any beneficial owner of the NotesDebt, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided CM Information in writing by the Collateral Manager expressly for inclusion in the each Offering Circular, such information as of the date made, containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, indirect, special, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. The Collateral Manager and any of its Affiliates may consult with counsel, independent accountants or any other experts selected by them and shall not be liable for any action taken or omitted to be taken by them in accordance with their advice. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and each of Owners and their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance or incurrence of the Securities Debt (including, without limitation, any untrue statement of material fact contained in the each Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than CM Information), the transactions contemplated by the applicable Offering Circular, the Indenture or Indenture, this Agreement Agreement, the other Transaction Documents, any Underlying Instruments and the performance of the Assets and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. .
(c) The Collateral Manager shall indemnify not be responsible or liable for any failure or delay in the performance of its duties and hold harmless obligations under this Agreement and/or the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto Indenture arising out of or in connection caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(d) It is understood that certain provisions of this Agreement may serve to limit the potential liability of the Collateral Manager. The Issuer has had the opportunity to consult with one or more the Collateral Manager Breaches; providedas well as, if desired, its professional advisors and legal counsel as to the effect of these provisions. It is further understood that if such Issuer Indemnified Party is certain applicable laws, including applicable federal or state securities laws, may impose liability or allow for legal remedies even where the IssuerCollateral Manager has acted in good faith and that the rights under those laws may be non-waivable. Nothing in this Agreement shall, such Issuer Indemnified Party shall in any way, constitute a waiver or limitation of any rights which may not be indemnified for any Losses so limited or Expenses incurred as a result waived in accordance with applicable law, including with respect to the breach of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard fiduciary duty owed under Section 206 of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this AgreementAdvisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (GOLUB CAPITAL BDC, Inc.)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the Issuer, the Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates or Related Persons or any other person Person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgements, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Owl Rock Capital Corp)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the Issuer, the Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Co-Initial Purchasers, any of their respective Affiliates or Related Persons or any other person Person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, settlementjudgements, assessments, settlement cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Technology Finance Corp.)
Limits of Collateral Manager Responsibility. The (a) In rendering the services called for hereunder and under the terms of the Credit Agreement applicable to the Collateral Manager, the Collateral Manager assumes no responsibility under this Agreement other than to render the services called for perform its duties and obligations hereunder and under the terms of the Indenture Credit Agreement applicable to it in good faith and, subject to the standard of conduct described except as set forth in the next succeeding sentence, shall not be responsible for any action or inaction of the Issuer Borrower, the Collateral Agent, the Custodian or the Trustee Facility Agent in following or declining to follow any advice, recommendation direction or direction advice of the Collateral Manager. The Indemnified Parties None of the Collateral Manager, its Affiliates and their respective partners, members, managers, stockholders, directors, officers, employees, personnel and agents (as defined beloweach a “Collateral Manager Party”) shall not will be liable to the IssuerBorrower, the TrusteeFacility Agent, the Holders of the NotesCustodian, the Preferred Shareholders Collateral Agent, the Lenders or any other person Person for any act, omission, error of judgment, mistake of lawLosses incurred (including reasonable attorneys’ and accountants’ fees and expenses), or for any claimdecrease in the value of the Collateral as a result of, loss, liability, damage, settlement, cost, the actions taken or other expense (including attorneys’ fees and expenses and court costs) arising out of any investmentrecommended, or for any other act omissions (including, with respect to the Collateral Agent, the Custodian, the Facility Agent or omission in the performance of any Lender, any failure to timely grant any consent requested by the Collateral Manager’s obligations ) by, the Collateral Manager, its Affiliates or their respective partners, members, managers, stockholders, directors, officers, employees, personnel or agents under or in connection with this Agreement or the terms of any other Transaction Document the Credit Agreement applicable to it, except that the Collateral Manager, incurred Manager shall be so liable as a result and to the extent specified in Section 10(b)(ii) for such Losses arising out of actions taken or recommended in connection with acts or for any omissions of the Collateral Manager, or for any decrease in the value of the Collateral, except, in the case of the Collateral Manager, (A) by reason of acts Manager constituting bad faith, willful misconduct, fraud or gross negligence or fraud by the Collateral Manager in the performance of, or reckless disregard ofby the Collateral Manager with respect to, its duties the obligations of the Collateral Manager hereunder and under the terms of the Indenture and (B) with respect Credit Agreement applicable to information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information containing any untrue statement of material fact or omitting to state (a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager BreachesBreach”). The ; provided that, no Collateral Manager Party shall not be liable to the Borrower, the Collateral Agent, the Custodian, the Facility Agent, the Lenders or any other Person for any consequentialconsequential (including loss of profit), punitiveindirect, exemplary special or treble punitive damages under this Agreement or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law the Credit Agreement or any rules or regulations adopted thereunder. other Facility Document.
(i) The Issuer Borrower shall indemnify and hold harmless (the Borrower in such case, the “Indemnifying Party”) the Collateral Manager and Manager, its Affiliates and each of their respective partners, members, managers, stockholders, directors, officers, shareholdersemployees, partnerspersonnel and agents (in each such case, members, agents and employees (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) Losses arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading)Notes, the transactions contemplated by the Offering Circularthis Agreement, the Indenture Credit Agreement or this Agreement and any other Facility Document or any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall the Borrower will not be indemnified liable for any Losses or Expenses to the extent that such Losses are incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more a Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. Breach.
(ii) The Collateral Manager shall indemnify and hold harmless (the Issuer and Collateral Manager in such case, the Placement Agent “Indemnifying Party”) the Borrower, its Affiliates and their respective Affiliates (and each of their partners, members, managers, stockholders, directors, officers, stockholdersemployees, partnerspersonnel and agents (any such party in each such case, members, agents and employees) (each, an the “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more a Collateral Manager BreachesBreach; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall Collateral Manager will not be indemnified liable for any Losses or Expenses to the extent that such Losses are incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of fraud by such Issuer Indemnified Party hereunder or under the terms of any other Transaction Facility Document applicable to it. For purposes No partners, members, managers, stockholders, directors, officers, employees, personnel or agents of the Collateral Manager shall be liable for the Collateral Manager’s obligations hereunder.
(iii) If for any reason the indemnity provided for in this Section 10 is unavailable, then the Indemnifying Party shall contribute to the amount paid or payable by the Indemnified Party as a result of any Losses in such proportion as is appropriate to reflect the relative benefits received by the Indemnifying Party on the one hand and the Indemnified Party on the other hand.
(c) An Indemnified Party shall (or, with respect to the Collateral Manager’s partners, members, managers, stockholders, directors, officers, employees, personnel and agents, the Collateral Manager shall cause such Indemnified Party to) within ten (10) Business Days of receiving notice thereof, 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 or to comply with Section 10 shall not relieve such Indemnifying Party from its obligations under paragraph Section 10(b) unless and to the extent that such failure results in the forfeiture by the Indemnifying Party of substantial rights and defenses.
(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 partners, members, managers, stockholders, directors, officers, employees, personnel and agents, the Collateral Manager shall cause such Indemnified Party to):
(i) at the Indemnifying Party’s expense, provide the Indemnifying Party with 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) 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;
(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 reasonably 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 so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party for any legal expenses of other counsel or any other expenses, in each Placement Agent case subsequently incurred by such Indemnified Party, in connection with the defense thereof unless such Indemnified Party reasonably determines that counsel selected by the Indemnifying Party has a conflict of interest due to conflicting interests of the Indemnifying Party and the Indemnified Party, in which case such Indemnifying Party shall pay the reasonable fees and disbursements of one additional counsel selected by the Indemnified Party (in additional 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; and
(iv) 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 admission or factual admissions the failure to make that could 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 an express third party beneficiary unlikely to have sufficient funds available to indemnify the Indemnified Party in full (taking into account the Priority of this Payments set forth in Section 9.01 of the Credit Agreement)) 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.
(e) No Indemnified Party shall, without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, 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; 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 Priority of Payments set forth in Section 9.01 of the Credit Agreement.
(f) No Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed, settle or compromise any claim giving rise to a claim for indemnity hereunder if such settlement includes a statement as to or an admission of fault, culpability or a failure to act by or on behalf of an Indemnified Party.
Appears in 1 contract
Samples: Collateral Management Agreement (WhiteHorse Finance, LLC)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates and their respective Related Persons shall not be liable to the Issuer, the Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Placement Agent, the Co-Placement Agent, any of their respective Affiliates or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Capital Corp II)
Limits of Collateral Manager Responsibility. (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 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 in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its directors, officers, stockholders, partners, agents and employees, and its Affiliates and their directors, officers, stockholders, partners, agents and employees, shall not be liable to the Issuer, the Trustee, the Holders of the Notes, the Preferred Shareholders Noteholders or any other person for any actlosses (including, omissionbut not limited to, error losses in value of judgmentthe Collateral), mistake of lawclaims, damages, judgments, assessments, costs or other liabilities (collectively, "Liabilities") incurred by the Issuer, the Trustee, or for any claim, loss, liability, damage, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising the Noteholders that arise out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with the performance by the Collateral Manager of its duties under this Agreement or and the terms of any other Transaction Document applicable to the Collateral ManagerIndenture, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the Collateral, except, in the case of the Collateral Manager, except (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud negligence or gross negligence breach of fiduciary duty in the performance ofperformance, or reckless disregard ofdisregard, its duties of the obligations of the Collateral Manager hereunder and under the terms of the Indenture and applicable to it or (Bii) with respect to the information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering CircularMemorandum dated November 11, 1997 relating to Collateralized Loan Obligations issuable in series (the "Base Memorandum"), and the Supplements dated November 11, 1997 to the Base Memorandum relating to the Senior Notes and the Subordinated Notes (the "Note Supplements" and together with the Base Memorandum, the "Offering Memorandum"), such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement statements therein, in the light of the circumstances under which they are were made, not misleading (such misleading. The matters described in (Ai) and (Bii) above in the preceding sentence are collectively being referred to herein for purposes of this paragraph 10 as “"Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. ".
(b) The Issuer shall indemnify and hold harmless (the Issuer in such case, the "Indemnifying Party") the Collateral Manager and Manager, its Affiliates and each of their directors, officers, shareholdersstockholders, partners, members, agents and employees (eachsuch parties collectively in such case, a “Collateral Manager the "Indemnified Party”Parties") from and against any and all lossesLiabilities, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (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 Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading)Notes, the transactions contemplated by the Offering CircularMemorandum, the Indenture Indenture, the loan purchase agreement among the Collateral Manager, the Issuer and Merrill Lynch, Pierce, Fexxxx & Smith Incorporatex xxxxd Jxxx 03, 1997, the bond purchase agreement between the Collateral Manager and Merrill Lynch 67 International dated July 23, 1997, or this Agreement and Agreement, and/or any acts action taken by, or omissions of any failure to act by, such Collateral Manager Indemnified Party; provided, however, that such Collateral Manager no Indemnified Party shall not be indemnified for any Losses Liabilities or Expenses incurred it incurs as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more constituting Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer shall be payable solely out of the Collateral in accordance with the Priority of Payments priorities set forth in the Indenture. The Collateral Manager .
(c) With respect to any claim made or threatened against an Indemnified Party, or compulsory process or request or other notice of any loss, claim, damage or liability served upon an Indemnified Party, for which such Indemnified Party is or may be entitled to indemnification under this Section 10, such Indemnified Party shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their or with respect to Indemnified Parties that are directors, officers, stockholders, partnersagents or employees of the Collateral Manager, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each the Collateral Manager shall cause such Issuer Indemnified Party for all Expenses incurred by to):
(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 Issuer estimate of the amount) of the claim; 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 unless the Indemnifying Party is materially prejudiced or otherwise forfeits 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 arising out (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 or consent to the entry of or any judgment in connection with one or more Collateral Manager Breachesrespect thereof, in each case without the prior written consent of the Indemnifying Party; 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 Issuer claim, it shall not be liable for any fees and expenses of counsel for any Indemnified Party is incurred thereafter in connection with such claim except that if such Indemnified Party reasonably determines that counsel designated by the IssuerIndemnifying Party has a conflict of interest due to the conflicting interests of the Indemnifying Party and the Indemnified Party, such Issuer 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; and provided further, that 68 prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best efforts in the light of the then prevailing circumstances.
(d) In the event that any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be indemnified entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any Losses costs of counsel to such Indemnified Party.
(e) Nothing herein shall in any way constitute a waiver or Expenses incurred as a result limitation of any acts or omissions by such rights which the Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or may have under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this AgreementU.S. federal securities laws.
Appears in 1 contract
Samples: Collateral Management Agreement (Pilgrim America Capital Corp)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer Issuer, the A-L-A Loan Agent, the A-L-B Loan Agent or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the A- L-A Loan Agent, the A-L-B Loan Agent, the Trustee, the Holders any Holder, any beneficial owner of the NotesDebt, the Preferred Shareholders Co-Placement Agent, the Placement Agent, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, (A) Manager would be subject by reason of (i) acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information Circular Information (as of its date) containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under in which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and each of Owners and their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.and
Appears in 1 contract
Samples: Collateral Management Agreement (Nuveen Churchill Direct Lending Corp.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any holder, any beneficial owner of the Notes, the Preferred Shareholders Placement Agents, any of their respective affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Neither the Collateral Manager nor any of its individual Affiliates shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. The Collateral Manager and any of its Affiliates may consult with counsel, independent accountants or any other experts selected by them and shall not be liable for any action taken or omitted to be taken by them in accordance with their advice. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager Manager, its affiliates and its Affiliates Owners and each of their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Final Offering Circular Memorandum, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Final Offering CircularMemorandum, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuerprovided that, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faitha Collateral Manager Breach. Notwithstanding anything contained herein to the contrary, willful misconduct, gross negligence or reckless disregard of the obligations of such the Issuer under this Section 10 to indemnify any Indemnified Party hereunder for any Losses or Expenses are non-recourse obligations of the Issuer payable solely out of the Assets in accordance with the Priority of Payments set forth in the Indenture.
(c) It is understood that certain provisions of this Agreement may serve to limit the potential liability of the Collateral Manager. The Issuer has had the opportunity to consult with the Collateral Manager as well as, if desired, its professional advisors and legal counsel as to the effect of these provisions. It is further understood that certain applicable laws, including applicable federal or state securities laws, may impose liability or allow for legal remedies even where the Collateral Manager has acted in good faith and that the rights under the terms those laws may be non-waivable. Nothing in this Agreement shall, in any way, constitute a waiver or limitation of any other Transaction Document rights which may not be so limited or waived in accordance with applicable to it. For purposes law.
(d) The Collateral Manager shall not be responsible or liable for any failure or delay in the performance of its duties and obligations under this Section 10Agreement and/or the Indenture arising out of or caused by, each Placement Agent is an express third party beneficiary directly or indirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of this Agreementwar or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
Appears in 1 contract
Samples: Collateral Management Agreement (Apollo Debt Solutions BDC)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Collateral Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates and their respective Related Persons shall not be liable to the Issuer, the Collateral Trustee, the Holders any Holder of Debt, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Placement Agent, any of their respective Affiliates or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Capital Corp)
Limits of Collateral Manager Responsibility. (a) The Collateral Manager assumes no responsibility under this Agreement other than to render the services called for expressly required to be performed by it hereunder and under the terms other Transaction Documents in accordance with the Collateral Manager Standard. None of the Indenture applicable to it in good faith andCollateral Manager’s Affiliates, subject to the standard of conduct described in the next succeeding sentence, Owners or their respective Related Persons nor any Independent Review Party assumes any responsibility under this Agreement. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Collateral Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Collateral Trustee, the Holders Loan Agent, any Holder of the NotesDebt, the Preferred Shareholders Placement Agent, the Co- Structuring Agent, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager shall be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Offering Circular Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any indirect, incidental, consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture regardless of whether such losses or damages are foreseeable and regardless of the form of action. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and Owners and their respective Related Persons and each of their directors, officers, shareholders, partners, members, agents and employees Independent Review Party (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance or incurrence, as applicable, of the Securities Debt (including, without limitation, any untrue statement of material fact contained in the Offering Circular or any offering circular which supersedes or supplements the Offering Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than Collateral Manager Offering Circular Information), the transactions contemplated by the Offering Circular or any offering circular which supersedes or supplements the Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Breach.
(c) Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture, and shall be subject to the terms of Section 17 hereof.
(d) Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Agreement shall not be construed so as to provide for the exculpation of the Collateral Manager or the indemnification of the Issuer or the Collateral Manager for any liability (including liability under United States federal securities laws), to the extent (but only to the extent) that such liability may not be waived, modified or limited under applicable law or such indemnification may not be demanded under applicable law, but shall otherwise be construed so as to effectuate the provisions of this Agreement to the fullest extent permitted by applicable law.
(e) In providing services under this Agreement, the Collateral Manager may rely in good faith upon and will be fully protected and incur no liability for relying upon advice of nationally recognized counsel, accountants or other advisers as the Collateral Manager determines, in its sole discretion, is reasonably appropriate in connection with the services provided by the Collateral Manager under this Agreement.
(f) 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.
(g) To the fullest extent permitted by Applicable Law and notwithstanding anything to the contrary contained herein or in any other agreement contemplated herein, whenever in this Agreement or the Indenture the Collateral Manager is permitted or required to make a decision in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Collateral Manager shall be entitled to consider only such interests and factors as it desires, including its own interests or the interests of any of its Affiliates, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Issuer or any other Person. The intent of granting authority to act in its “discretion” to the Collateral Manager is that no other express consent of another party is required to be obtained by the Collateral Manager when acting pursuant to such grant of authority under this Agreement or the Indenture. If any questions should arise with respect to the operation of the Issuer that are not specifically provided for in this Agreement or the Indenture, or with respect to the interpretation of this Agreement or the Indenture, the Collateral Manager is hereby authorized to make a final determination in its sole discretion with respect to any such question, and its determination and interpretation so made shall be final and binding on all parties.
(h) The Collateral Manager does not warrant, nor accept responsibility, nor will the Collateral Manager have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Term SOFR Rate,” “Fallback Rate” or with respect to any 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.
(i) The Collateral Manager shall indemnify not be responsible or liable for any failure or delay in the performance of its duties and hold harmless obligations under this Agreement and/or the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto Indenture arising out of or in connection with one caused by, directly or more Collateral Manager Breaches; providedindirectly, that if such Issuer Indemnified Party is the Issuerforces beyond its control, such Issuer Indemnified Party shall not be indemnified for any Losses including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of war or Expenses incurred as a result terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of any acts God, and interruptions, loss or omissions by such Issuer Indemnified Party that constitute bad faithmalfunctions of utilities, willful misconduct, gross negligence communications or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementcomputer (software and hardware) services.
Appears in 1 contract
Samples: Collateral Management Agreement (PennantPark Floating Rate Capital Ltd.)
Limits of Collateral Manager Responsibility. The (a) In rendering the services called for hereunder and under the terms of the Credit Agreement applicable to the Collateral Manager, the Collateral Manager assumes no responsibility under this Agreement other than to render the services called for perform its duties and obligations hereunder and under the terms of the Indenture Credit Agreement applicable to it in good faith and, subject to the standard of conduct described except as set forth in the next succeeding sentence, shall not be responsible for any action or inaction of the Issuer Borrower, the Collateral Agent, the Custodian or the Trustee Administrative Agent in following or declining to follow any advice, recommendation direction or direction advice of the Collateral Manager. The Indemnified Parties None of the Collateral Manager, its Affiliates and their respective partners, members, managers, stockholders, directors, officers, employees and agents (as defined beloweach a “Collateral Manager Party”) shall not will be liable to the IssuerBorrower, the TrusteeCollateral Agent, the Holders of the NotesCustodian, the Preferred Shareholders Administrative Agent, the Lenders or any other person Person for any act, omission, error of judgment, mistake of lawLosses incurred (including reasonable attorneys’ and accountants’ fees and expenses), or for any claimdecrease in the value of the Collateral as a result of, loss, liability, damage, settlement, cost, the actions taken or other expense (including attorneys’ fees and expenses and court costs) arising out of any investmentrecommended, or for any other act omissions (including, with respect to the Collateral Agent, the Custodian, the Administrative Agent or omission in the performance of any Lender, any failure to timely grant any consent requested by the Collateral Manager’s obligations ) by, the Collateral Manager, its Affiliates or their respective partners, members, managers, stockholders, directors, officers, employees or agents under or in connection with this Agreement or the terms of any other Transaction Document the Credit Agreement applicable to it, except that the Collateral Manager, incurred Manager shall be so liable as a result of actions taken or recommended or and to the extent specified in Section 10(b)(ii) for any omissions of the Collateral Manager, or for any decrease in the value of the Collateral, except, in the case of the Collateral Manager, such Losses that arise (Ai) by reason of acts any act or omission of the Collateral Manager constituting bad faith, willful misconduct, fraud or gross negligence or fraud by the Collateral Manager in the performance of, or reckless disregard ofby the Collateral Manager with respect to, its duties the obligations of the Collateral Manager hereunder and under the terms of the Indenture and (B) with respect Credit Agreement applicable to information concerning the Collateral Manager provided in writing or (ii) by any breach of the representations and warranties of the Collateral Manager expressly for inclusion set forth in the Offering Circular, such information containing any untrue statement of material fact or omitting to state Section 16 (a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager BreachesBreach”). The ; provided that, no Collateral Manager Party shall not be liable to the Borrower, the Collateral Agent, the Custodian, the Administrative Agent, the Lenders or any other Person for any consequentialconsequential (including loss of profit), punitiveindirect, exemplary special or treble punitive damages under this Agreement or lost profitsthe Credit Agreement or any other Loan Document. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(i) The Issuer Borrower shall indemnify and hold harmless (the Borrower in such case, the “Indemnifying Party”) the Collateral Manager and Manager, its Affiliates and each of their respective partners, members, managers, stockholders, directors, officers, shareholdersemployees and agents (in each such case, partners, members, agents and employees (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) Losses arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Offering Circularthis Agreement, the Indenture Credit Agreement or this Agreement and any other Loan Document or any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall the Borrower will not be indemnified liable for any Losses or Expenses to the extent that such Losses are incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more a Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. Breach.
(ii) The Collateral Manager shall indemnify and hold harmless (the Issuer and Collateral Manager in such case, the Placement Agent “Indemnifying Party”) the Borrower, its Affiliates and their respective Affiliates (and each of their partners, members, managers, stockholders, directors, officers, stockholdersemployees and agents (any such party in each such case, partners, members, agents and employees) (each, an the “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more a Collateral Manager BreachesBreach; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall Collateral Manager will not be indemnified liable for any Losses or Expenses to the extent that such Losses are incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of fraud by such Issuer Indemnified Party hereunder or under the terms of any other Transaction Loan Document applicable to it. For purposes No partners, members, managers, stockholders, directors, officers, employees or agents of the Collateral Manager shall be liable for the Collateral Manager’s obligations hereunder.
(iii) If for any reason the indemnity provided for in this Section 10 is unavailable, then the Indemnifying Party shall contribute to the amount paid or payable by the Indemnified Party as a result of any Losses in such proportion as is appropriate to reflect the relative benefits received by the Indemnifying Party on the one hand and the Indemnified Party on the other hand.
(c) An Indemnified Party shall (or, with respect to the Collateral Manager’s partners, members, managers, stockholders, directors, officers, employees and agents, the Collateral Manager shall cause such Indemnified Party to) within ten (10) Business Days of receiving notice thereof, 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 to so notify the Indemnifying Party or to comply with Section 10 shall not relieve such Indemnifying Party from its obligations under paragraph Section 10(b) unless and to the extent that such failure results in the forfeiture by the Indemnifying Party of substantial rights and defenses.
(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 partners, members, managers, stockholders, directors, officers, employees and agents, the Collateral Manager shall cause such Indemnified Party to):
(i) at the Indemnifying Party’s expense, provide the Indemnifying Party with 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) 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;
(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 reasonably 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 so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party for any legal expenses of other counsel or any other expenses, in each Placement Agent case subsequently incurred by such Indemnified Party, in connection with the defense thereof unless such Indemnified Party reasonably determines that counsel selected by the Indemnifying Party has a conflict of interest due to conflicting interests of the Indemnifying Party and the Indemnified Party, in which case such Indemnifying Party shall pay the reasonable fees and disbursements of one additional counsel selected by the Indemnified Party (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; and
(iv) 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 admission or factual admissions the failure to make that could 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 an express third party beneficiary unlikely to have sufficient funds available to indemnify the Indemnified Party in full (taking into account (where the Indemnifying Party is the Borrower) the Priority of this Payments set forth in Section 9.1 of the Credit Agreement)) 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.
(e) No Indemnified Party shall, without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, 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; 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 (where the Indemnifying Party is the Borrower) the Priority of Payments set forth in Section 9.1 of the Credit Agreement.
(f) No Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed, settle or compromise any claim giving rise to a claim for indemnity hereunder if such settlement includes a statement as to or an admission of fault, culpability or a failure to act by or on behalf of an Indemnified Party.
Appears in 1 contract
Samples: Collateral Management Agreement (Fifth Street Senior Floating Rate Corp.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer Issuer, the Loan Agent or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Loan Agent, the Trustee, the Holders any Holder, any beneficial owner of the NotesDebt, the Preferred Shareholders Initial Purchaser, the Co-Placement Agent, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, (A) Manager would be subject by reason of (i) acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and (B) with respect to information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.
Appears in 1 contract
Samples: Collateral Management Agreement (Nuveen Churchill Direct Lending Corp.)
Limits of Collateral Manager Responsibility. 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 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 Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders of the Notes, the Preferred Shareholders or any other person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the Collateral, except, in the case of the Collateral Manager, (A) by reason of acts constituting bad faith, willful misconduct, fraud or gross negligence in the performance of, or reckless disregard of, its duties hereunder and under the terms of the Indenture and (B) with respect to information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer Issuer, the Initial Purchaser and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each of the Initial Purchaser and the Placement Agent is an express third party beneficiary of this Agreement.
Appears in 1 contract
Samples: Collateral Management Agreement (Taberna Realty Finance Trust)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its affiliates or their respective Related Persons assumes no any responsibility under this Agreement Agreement, other than the Collateral Manager’s assumption of its responsibility to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith andfaith, subject to the standard Standard of conduct Care described in the next succeeding sentence, Section 2(a). The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager, including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders of the Notesany Holder, the Preferred Shareholders Initial Purchaser, any of their respective affiliates, or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of or with respect to any investment, investment or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under in which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(i) The Issuer shall indemnify and hold harmless (the Issuer in such case, the “Indemnifying Party”) the Collateral Manager Manager, its affiliates and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Offering Circular Circulars, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleadingmisleading other than the Collateral Manager Information), the transactions contemplated by the Offering CircularCirculars, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faitha Collateral Manager Breach. Notwithstanding anything contained herein to the contrary, willful misconduct, gross negligence or reckless disregard of the obligations of such the Issuer under this Section 10 to indemnify any Indemnified Party hereunder for any Losses or under Expenses are non-recourse obligations of the terms Issuer payable solely out of the Assets in accordance with the Priority of Payments set forth in the Indenture.
(ii) The Collateral Manager shall indemnify and hold harmless (the Collateral Manager in such case, the “Indemnifying Party”) the Issuer, its affiliates and their respective Related Persons (each such party being, in such case, an “Indemnified Party”) from and against any and all Losses and shall promptly reimburse each such Indemnified Party for all reasonable Expenses as such Expenses are incurred in investigating, preparing, pursuing or defending any Actions in respect of or arising out of any Collateral Manager Breaches; provided, however, that the Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits.
(c) An Indemnified Party shall (or, with respect to the Related Persons of the Collateral Manager or of the Issuer, as applicable, the Collateral Manager or the Issuer, as applicable, shall cause such Indemnified Party to) promptly notify the Indemnifying Party if the Indemnified Party receives a complaint, claim, compulsory process or other Transaction Document applicable notice of any Loss giving rise to it. For purposes of a claim for indemnification under this Section 10, but failure so to notify the Indemnifying Party or to comply with paragraph (d) below shall not relieve such Indemnifying Party from its obligations under this Section 10 unless and to the extent that such Indemnifying Party did not otherwise learn of such action or proceeding and to the extent such failure results in the forfeiture by the Indemnifying Party of material rights and defenses.
(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 Related Persons of the Collateral Manager or of the Issuer, as applicable, the Collateral Manager or the Issuer, as applicable, shall cause such Indemnified Party to):
(i) 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;
(ii) 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;
(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, (A) to participate in the investigation, defense and settlement of such claim, and, (B) 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 so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under such subsection for any legal fees and expenses of other counsel or any other expenses, in each Placement Agent case subsequently incurred by such Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation, except that, if such Indemnified Party reasonably determines that counsel selected by the Indemnifying Party has a conflict of interest, such Indemnifying Party shall pay the reasonable fees and disbursements of one additional counsel selected by the Indemnified Party (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; and
(iv) neither incur any material expense to defend against nor make any admission with respect thereto (other than routine or incontestable admission or factual admissions the failure to make which could expose such Indemnified Party to (A) unindemnified liability, or (B) only if the Indemnified Party is the Collateral Manager or an express third party beneficiary affiliate or Related Person of the Collateral Manager or of an affiliate thereof, 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 Priority of Payments), nor permit a default or 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.
(e) No Indemnified Party shall, without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, 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; provided that if the Indemnified Party is the Collateral Manager or an affiliate or a Related Person of the Collateral Manager or of an affiliate thereof, 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 Priority of Payments.
(f) No Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, settle or compromise or consent to the entry of any judgment with respect to any claim giving rise to a claim for indemnity hereunder if such settlement includes a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.
(g) The compliance of the Collateral Manager’s actions with the provisions of the Indenture and this Agreement shall be determined on the date of action only, based upon the prices and characteristics of the Assets on the date of such action (or on the most recent date practicable, in the case of Collateral Obligations not purchased or sold on such date); provided that the provisions of the Indenture and this Agreement shall not be deemed breached as a result of changes in value, status or any other conditions of an investment following the date of such action and the Collateral Manager shall not be responsible under this Agreement for the performance of or any losses on the Assets acquired in accordance with this Agreement.
(h) The Assets shall be held by the Custodian appointed by the Issuer pursuant to the Indenture. The Collateral Manager and its Affiliates shall at no time have custody or physical control of the Assets. The Collateral Manager shall not be liable for any act or omission of the Collateral Administrator, the Trustee or any sub-custodian or other agent appointed by the Calculation Agent or the Issuer. Any compensation owed to the Collateral Administrator, the Trustee or the Calculation Agent for their services to the Issuer shall be the obligation of the Issuer and not the Collateral Manager.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC, Inc.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any holder, any beneficial owner of the Notes, the Preferred Shareholders Initial Purchaser, the Placement Agent, any of their respective affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. The Collateral Manager and any of its Affiliates may consult with counsel, independent accountants or any other experts selected by them and shall not be liable for any action taken or omitted to be taken by them in accordance with their advice. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager Manager, its affiliates and its Affiliates Owners and each of their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Final Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Final Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; providedprovided that, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. Notwithstanding anything to the contrary, no provision herein shall be construed so as to provide for the indemnification or exculpation of any party (including, the Collateral Manager or its affiliates) for any liability (including liability under U.S. federal securities laws which, under certain circumstances, impose liability even on persons that act in good faith), to the extent (but only to the extent) that such indemnification or exculpation would be in violation of applicable law, but shall instead be construed so as to effectuate such provision to the fullest extent permitted by law.
(c) It is understood that certain provisions of this Agreement may serve to limit the potential liability of the Collateral Manager. The Issuer has had the opportunity to consult with the Collateral Manager as well as, if desired, its professional advisors and legal counsel as to the effect of these provisions. It is further understood that certain applicable laws may impose liability or allow for legal remedies even where the Collateral Manager has acted in good faith and that the rights under those laws may be non-waivable. Nothing in this Agreement shall, in any way, constitute a waiver or limitation of any rights which may not be so limited or waived in accordance with applicable law.
(d) The Collateral Manager does not warrant, nor accept responsibility, nor shall the Collateral Manager have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Term SOFR Rate,” “Benchmark,” “Fallback Rate” or with respect to any rate that is an alternative, replacement, rate that is an alternative or replacement for or successor to any of such rate (including, without limitation, any Base Rate Modifier) or the effect of any of the foregoing, or of any supplemental indenture pursuant to clause (xxix) of Section 8.1(a) of the Indenture.
(e) The Collateral Manager shall indemnify not be responsible or liable for any failure or delay in the performance of its duties and hold harmless obligations under this Agreement and/or the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto Indenture arising out of or in connection with one caused by, directly or more Collateral Manager Breaches; providedindirectly, that if such Issuer Indemnified Party is the Issuerforces beyond its control, such Issuer Indemnified Party shall not be indemnified for any Losses including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of war or Expenses incurred as a result terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of any acts God, and interruptions, loss or omissions by such Issuer Indemnified Party that constitute bad faithmalfunctions of utilities, willful misconduct, gross negligence communications or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementcomputer (software and hardware) services.
Appears in 1 contract
Samples: Collateral Management Agreement (MidCap Financial Investment Corp)
Limits of Collateral Manager Responsibility. The (a) In rendering the services called for hereunder and under the terms of the Credit Agreement applicable to the Collateral Manager, the Collateral Manager assumes no responsibility under this Agreement other than to render the services called for perform its duties and obligations hereunder and under the terms of the Indenture Credit Agreement applicable to it in good faith and, subject to the standard of conduct described except as set forth in the next succeeding sentence, shall not be responsible for any action or inaction of the Issuer Borrower, the Collateral Agent, the Collateral Administrator, the Custodian or the Trustee Facility Agent in following or declining to follow any advice, recommendation direction or direction advice of the Collateral Manager. The Indemnified Parties None of the Collateral Manager, its Affiliates and their respective partners, members, managers, stockholders, directors, officers, employees, personnel and agents (as defined beloweach an “Collateral Manager Party”) shall not will be liable to the IssuerBorrower, the TrusteeFacility Agent, the Holders of the NotesCustodian, the Preferred Shareholders Collateral Agent, the Senior Lenders or any other person Person for any act, omission, error of judgment, mistake of lawLosses incurred (including reasonable attorneys’ and accountants’ fees and expenses), or for any claimdecrease in the value of the Collateral as a result of, loss, liability, damage, settlement, cost, the actions taken or other expense (including attorneys’ fees and expenses and court costs) arising out of any investmentrecommended, or for any other act omissions (including, with respect to the Collateral Agent, the Collateral Administrator, the Custodian, the Facility Agent or omission in the performance of any Senior Lender, any failure to timely grant any consent requested by the Collateral Manager’s obligations ) by, the Collateral Manager, its Affiliates or their respective partners, members, managers, stockholders, directors, officers, employees, personnel or agents under or in connection with this Agreement or the terms of any other Transaction Document the Credit Agreement applicable to it, except that the Collateral Manager, incurred Manager shall be so liable as a result of actions taken or recommended or and to the extent specified in Section 10(b)(ii) for any omissions of the Collateral Manager, or for any decrease in the value of the Collateral, except, in the case of the Collateral Manager, such Losses that arise (Ai) by reason of acts any act or omission of the Collateral Manager constituting bad faith, willful misconduct, fraud or gross negligence or fraud by the Collateral Manager in the performance of, or reckless disregard ofby the Collateral Manager with respect to, its duties the obligations of the Collateral Manager hereunder and under the terms of the Indenture and (B) with respect Credit Agreement applicable to information concerning the Collateral Manager provided as determined in writing a final non-appealable judgment by a court of competent jurisdiction or (ii) any material breach of the representations and warranties of the Collateral Manager expressly for inclusion set forth in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees Section 16 (each, a “Collateral Manager Breach”); provided that, no Collateral Manager Party shall be liable to the Borrower, the Collateral Agent, the Collateral Administrator, the Custodian, the Facility Agent, the Senior Lenders or any other Person for any consequential (including loss of profit), indirect, special or punitive damages under this Agreement or the Credit Agreement or any other Loan Document.
(b) The Borrower shall indemnify and hold harmless (the Borrower in such case, the “Indemnifying Party”) the Collateral Manager, its Affiliates and their respective partners, members, managers, stockholders, directors, officers, employees, personnel and agents (in each such case, an “Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) Losses arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading)Loans, the transactions contemplated by the Offering Circularthis Agreement, the Indenture Credit Agreement or this Agreement and any other Loan Document or any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall the Borrower will not be indemnified liable for any Losses or Expenses to the extent that such Losses are incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more a Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this AgreementBreach.
Appears in 1 contract
Samples: Collateral Management Agreement (AB Private Credit Investors Corp)
Limits of Collateral Manager Responsibility. The (a) Notwithstanding anything set forth in the Indenture, any Hedge Agreement, any Pre-Closing Agreements or the Collateral Administration Agreement to the contrary, 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 Indenture, any Pre-Closing Agreements and the Collateral Administration Agreement applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, shall not be responsible for any action or inaction of the Issuer Issuer, the Insurer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager or for any action or inaction of the Collateral Administrator. The Indemnified Parties (as defined below) Collateral Manager, its directors, officers, partners, employees, Affiliates and agents shall not be liable to the Issuer, the Insurer, the Trustee, the Holders of the Notes, the Preferred Shareholders Securities or any other person for any act, omission, error of judgment, mistake of law, acts or for any claim, loss, liability, damage, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of omissions by the Collateral Manager’s obligations , its directors, officers, partners, employees, Affiliates or agents under or in connection with this Agreement or the terms of the Indenture, any other Transaction Document Pre-Closing Agreements or the Collateral Administration Agreement applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Managerit, or for any decrease in the value of the Collateral, except, in the case of the Collateral Manager, (A) except by reason of acts or omissions constituting criminal conduct, fraud, bad faith, willful misconduct, fraud misconduct or gross negligence in the performance ofperformance, or reckless disregard ofdisregard, its duties of the obligations of the Collateral Manager hereunder and or under the terms of the Indenture and (B) with respect to information concerning Indenture, any Pre-Closing Agreements or the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information containing any untrue statement of material fact or omitting Administration Agreement applicable to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunderit. The Issuer shall indemnify and hold harmless (the Issuer in such case, the “Indemnifying Party”) the Collateral Manager and Manager, its Affiliates and each of their directors, officers, shareholders, partners, membersemployees, Affiliates and agents and employees (eachother than any Affiliate in its capacity as a Noteholder) (such parties collectively in such case, a the “Collateral Manager Indemnified PartyParties”) from and against any and all expenses, losses, claims, damages, judgmentsliabilities, assessmentsdemands, costs or other liabilities (collectively, “Losses”) charges and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto claims of any nature whatsoever (including reasonable attorneys’ and accountants’ fees and expenses of counselexpenses), (i) (collectively, “Expenses”) arising out in respect of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Offering Circular, the Indenture or this Agreement and arising from any acts or omissions of the Collateral Manager, its directors, officers, partners, employees, Affiliates or agents made in good faith in the performance of the Collateral Manager’s duties under this Agreement, any such Pre-Closing Agreements, the Collateral Manager Indemnified Party; providedAdministration Agreement and the Indenture or (ii) in connection with the transactions contemplated by this Agreement, that such any Pre-Closing Agreements, the Collateral Manager Indemnified Party shall Administration Agreement and the Indenture, and in either case not be indemnified for any Losses constituting criminal conduct, fraud, bad faith, willful misconduct, gross negligence or Expenses incurred as a result reckless disregard of any acts or omissions by any such the Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesManager’s obligations hereunder. Notwithstanding anything contained herein in this Agreement to the contrary, the obligations of the Issuer under this Section 10 shall be (A) prior to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations the Capital Markets Closing Date, payable solely out of the Pre-Closing Collateral and only after any amounts owed by the Issuer to the Warehouse Lender (including but not limited to amounts paid in respect of the purchase price for, or recoupment of losses on, any Pre-Closing Collateral acquired by the Warehouse Lender for forward settlement to the Issuer) and the collateral agent under the Pre-Closing Agreement have been paid in full, in accordance with the terms of the Pre-Closing Agreements and (B) on and after the Capital Markets Closing Date, payable solely out of the Collateral in accordance with the Priority of Payments set forth in Payments.
(b) An Indemnified Party shall (or, with respect to the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their Manager’s directors, officers, stockholders, partners, membersemployees, agents Affiliates and employeesagents, 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 (eachi) shall not relieve such Indemnifying Party from its obligations under paragraph (a) above 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 for any obligations to any Person entitled to indemnity pursuant to paragraph (a) above other than the indemnification obligations provided for in paragraph (a) above.
(c) With respect to any claim made or threatened against an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each , or compulsory process or request served upon such Issuer Indemnified Party for all Expenses incurred by an Issuer 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 directors, officers, partners or employees, 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 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 so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability it may have pursuant to this Section 10 if it has not been prejudiced in any material respect by 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 arising out (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 or 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 theIndemnifying Party the right, in connection with one or more Collateral Manager Breachesits 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 Issuer claim, it shall not be liable for any fees and expenses of counsel for any Indemnified Party is incurred thereafter in connection with such claim except that if such Indemnified Party reasonably determines that counsel designated by the IssuerIndemnifying Party has a conflict of interest, such Issuer 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; and, provided, further that prior to entering into any final settlement or compromise, such Indemnifying Party shall use its best efforts in light of the then prevailing circumstances and shall not enter such settlement or compromise without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement or compromise attributes liability to the Indemnified Party.
(d) 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.
(e) In the event that any Indemnified Party waives its right to indemnification hereunder, the Indemnifying Party shall not be indemnified entitled to appoint counsel to represent such Indemnified Party nor shall the Indemnifying Party reimburse such Indemnified Party for any Losses or Expenses incurred as a result costs of any acts or omissions by counsel to such Issuer Indemnified Party that constitute bad Party.
(f) The U.S. federal securities laws impose liabilities under certain circumstances on persons who act in good faith; accordingly, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of notwithstanding any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary provision of this Agreement, nothing herein shall in any way constitute a waiver or limitation of any rights which the Issuer may have under any U.S. federal securities laws.
Appears in 1 contract
Samples: Collateral Management Agreement (GSC Investment LLC)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Collateral Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates and their respective Related Persons shall not be liable to the Issuer, the Collateral Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Credit Income Corp.)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, shall not be responsible for any action or inaction of the Issuer Issuer, the Independent Investment Professional or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any Holder of the NotesObligations, the Preferred Shareholders Placement Agent, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager shall be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and applicable to the Collateral Manager or (Bii) with respect to information concerning the Collateral Manager provided in writing by Offering Circular Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact fact, in each case necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(i) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and Owners and their respective Related Persons (any such party in each of their directorssuch case, officers, shareholders, partners, members, agents and employees (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance and borrowing of the Securities Obligations (including, without limitation, any untrue statement of material fact contained in the Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than Collateral Manager Offering Circular Information), the transactions contemplated by the Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; providedprovided that, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. Distributions.
(ii) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent Issuer, its Affiliates and their respective Affiliates (and each of their partners, members, managers, stockholders, directors, officers, stockholders, partners, members, employees and agents and employees) (eachany such party in each such case, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all or Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more a Collateral Manager BreachesBreach; provided, provided that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall Collateral Manager will not be indemnified liable for any Losses or Expenses to the extent that such Losses are incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of fraud by such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.
Appears in 1 contract
Samples: Collateral Management Agreement (Fifth Street Senior Floating Rate Corp.)
Limits of Collateral Manager Responsibility. (a) The Collateral Manager assumes no responsibility under this Agreement or liability hereunder other than to render the services called for expressly required to be performed hereunder and under the terms of the Indenture applicable to it in good faith and, Credit Agreement subject to the standard standards of conduct described in the next succeeding sentence, Section 2(a) and shall not be responsible for and shall have no liability for any action or inaction of the Issuer Borrower or the Trustee any other Person in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders of the Notes, the Preferred Shareholders or any other person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions None of the Collateral Manager, its affiliates and any of their respective members, managers, directors, officers, stockholders, agents, partners or employees (collectively, excluding the Collateral Manager, the “Individual Affiliates”) shall be liable to the Borrower or any other Person for any expenses, losses, claims, damages, judgments, assessments, charges, demands, costs or other liabilities (collectively, “Liabilities”) incurred by the Borrower or such other Person that arise out of or in connection with the performance by the Collateral Manager of the services required to be performed hereunder or under the Credit Agreement or for any decrease in the value of the Collateral, except, in the case except for Liabilities arising from any failure of the Collateral ManagerManager to adhere to, or render the services required to be performed hereunder in accordance with, the standards of conduct described in Section 2(a). The Collateral Manager and its Individual Affiliates will not be liable to the Borrower, the Administrative Agent, the Subordinated Lenders or the Lenders for any error of judgment, mistake of law, or any loss arising out of any investment, or for any other acts or omissions by the Collateral Manager or its Individual Affiliates under or in connection with this Agreement or under the Credit Agreement, except that the Collateral Manager only (Aand in any event excluding its Individual Affiliates) will be so liable by reason of acts, including acts by its Individual Affiliates, constituting bad faith, willful misconductmisconduct or gross negligence of the Collateral Manager hereunder or under the Credit Agreement. The Collateral Manager does not guarantee the value of the Warehouse Assets and shall not be responsible for any loss caused by a decline in the market value of the Warehouse Assets except to the extent it results from such acts. The Collateral Manager may delegate to an agent selected with reasonable care any or all of the duties assigned to the Collateral Manager hereunder; provided, fraud that no delegation by the Collateral Manager of any of its duties hereunder shall relieve the Collateral Manager of any of its duties hereunder nor relieve the Collateral Manager of any liability with respect to the performance of such duties in accordance with the provisions hereof. The Collateral Manager and its Individual Affiliates shall not, in any case, be liable for any indirect, special, punitive or consequential damages. The Collateral Manager shall indemnify and hold harmless the Borrower, the Administrative Agent, the Lenders and their respective affiliates, directors, officers, stockholders, agents, employees and controlling persons (each an “Indemnified Person”) from and against any and all Liabilities, and shall reimburse each such Indemnified Person on a current basis for all reasonable expenses (including reasonable fees and disbursements of counsel), incurred by such Indemnified Person in connection with investigating, preparing, responding to or defending any investigative, administrative, judicial or regulatory action, suit, claim or proceeding, relating to or arising out of any action or inaction by the Collateral Manager hereunder constituting bad faith, willful misconduct or gross negligence in the performance ofperformance, or reckless disregard ofdisregard, its duties hereunder and under the terms of the Indenture and (B) with respect to information concerning duties of the Collateral Manager provided hereunder, except to the extent that such Liabilities or expenses are found in writing a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from the Collateral Manager expressly for inclusion in gross negligence or willful misconduct of such Indemnified Person. This Section 10(a) shall survive the Offering Circulartermination of this Agreement and the repayment of all amounts owing to the Borrower and the Lenders under the Credit Documents.
(b) Subject always to Section 17, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer Borrower shall indemnify and hold harmless the Collateral Manager and its Individual Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all lossesLiabilities, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party person for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party in accordance with respect thereto Article VI of the Security Agreement (including reasonable fees and expenses of counsel) (collectively, the “Expenses”) incurred in investigating, preparing, pursuing or defending any claim, action, proceeding or investigation with respect to any pending or threatened litigation, caused by, or arising out of or in connection with the issuance Credit Documents, the Warehouse Assets or the business of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified PartyBorrower; provided, however, that no such Collateral Manager Indemnified Party Person shall not be indemnified for any Losses Liabilities or Expenses incurred that it incurs as a result of any acts or omissions by any such Person constituting bad faith, willful misconduct or gross negligence of the Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. hereunder as found by a final non-appealable judgement by a court of competent jurisdiction.
(c) Notwithstanding anything contained herein to the contrary, the obligations of the Issuer Borrower under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer shall be payable solely out of the Collateral Warehouse Assets and after repayment of all Obligations in accordance with the Priority terms of Payments set forth in the Indenture. Credit Agreement.
(d) The Collateral Manager shall indemnify not be responsible or liable for any failure or delay in the performance of its duties and hold harmless obligations under this Agreement and/or the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto Credit Agreement arising out of or in connection with one caused by, directly or more Collateral Manager Breachesindirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; provided, provided that if any such Issuer Indemnified Party failure or delay is the Issuer, such Issuer Indemnified Party shall not be indemnified for otherwise reasonably attributable to any Losses or Expenses incurred as a result act of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, misconduct or gross negligence by the Collateral Manager or reckless disregard its Individual Affiliates.
(e) It is understood that certain provisions of this Agreement may serve to limit the potential liability of the obligations Collateral Manager. The Borrower has had the opportunity to consult with the Collateral Manager as well as, if desired, its professional advisors and legal counsel as to the effect of such Issuer Indemnified Party hereunder these provisions. It is further understood that certain applicable laws, including applicable federal or state securities laws, may impose liability or allow for legal remedies even where the Collateral Manager has acted in good faith and that the rights under the terms those laws may be non-waivable. Nothing in this Agreement shall, in any way, constitute a waiver or limitation of any other Transaction Document rights which may not be so limited or waived in accordance with applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementlaw.
Appears in 1 contract
Samples: Warehouse Collateral Management Agreement (Apollo Debt Solutions BDC)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the Issuer, the Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Placement Agent, the Co-Manager any of their respective Affiliates or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Technology Income Corp.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than except that the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined belowin Section 10(b)) shall not be liable to the Issuer, the Trustee, the Holders any Holder, any beneficial owner of the Notes, any holder of Interests, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended by, or for any omissions of of, the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided Information in each Offering Circular, including, in each case, any amendment or supplement to such information approved by the Collateral Manager that is contained in any amendment or supplement to the Final Offering Circular (including any offering circular approved in writing by the Collateral Manager expressly for inclusion additional Notes issued pursuant to Section 2.13 of the Indenture, or for replacement securities issued in connection with a Refinancing in part by Class of one or more Classes of Notes, or any offering circular in connection with a Re-Pricing), as of the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, indirect, special, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and each of Owners and their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the each Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than Collateral Manager Information), the transactions contemplated by the applicable Offering Circular, the Indenture or Indenture, this Agreement Agreement, the other Transaction Documents, any Underlying Instruments and the performance of the Assets and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital Investment Corp)
Limits of Collateral Manager Responsibility. The (a) Notwithstanding anything in this Agreement to the contrary, none of the Collateral Manager Manager, its Affiliates or their respective Related Persons assumes no any responsibility under this Agreement Agreement, other than the Collateral Manager’s assumption of its responsibility to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith andfaith, subject to the standard Standard of conduct Care described in the next succeeding sentence, Section 2(b). The Collateral Manager shall not be responsible for any action or inaction of the Issuer or Issuer, the Trustee or any other Person in following or declining to follow any advice, recommendation or direction of the Collateral Manager, including as set forth in Section 7. The Notwithstanding anything in this Agreement to the contrary, the Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders of the Notesany Holder, the Preferred Shareholders Placement Agent, any of their respective Affiliates, or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of or with respect to any investment, investment or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral ManagerManager or any of its Related Persons, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning caused by (x) an untrue statement of a material fact included in the Collateral Manager provided in writing Information or (y) the omission by the Collateral Manager expressly for inclusion in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement thereinstatements in the Collateral Manager Information, in light of the circumstances under in which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Notwithstanding any provision herein or in the Indenture to the contrary, the Collateral Manager shall not be liable for any consequential, indirect, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture regardless of whether such losses or damages are foreseeable and regardless of the form of action. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) l4(i) The Issuer shall indemnify and hold harmless (the Issuer in such case, the “Indemnifying Party”) the Collateral Manager and Manager, its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Final Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, in each case, other than the Collateral Manager Information), the transactions contemplated by the Final Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts act or omissions omission by any such Collateral Manager Indemnified Party that constitute one or more constitutes a Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.
Appears in 1 contract
Samples: Collateral Management Agreement (Garrison Capital Inc.)
Limits of Collateral Manager Responsibility. The (a) Notwithstanding anything in this Agreement to the contrary, none of the Collateral Manager Manager, its Affiliates or their respective Related Persons assumes no any responsibility under this Agreement Agreement, other than the Collateral Manager’s assumption of its responsibility to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith andfaith, subject to the standard Standard of conduct Care described in the next succeeding sentence, Section 2(b). The Collateral Manager shall not be responsible for any action or inaction of the Issuer or Issuer, the Trustee or any other Person in following or declining to follow any advice, recommendation or direction of the Collateral Manager, including as set forth in Section 7. The Notwithstanding anything in this Agreement to the contrary, the Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders of the Notesany Holder, the Preferred Shareholders Placement Agent, any of their respective Affiliates, or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of or with respect to any investment, investment or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral ManagerManager or any of its Related Persons, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning caused by (x) an untrue statement of a material fact included in the Collateral Manager provided in writing Information or (y) the omission by the Collateral Manager expressly for inclusion in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement thereinstatements in the Collateral Manager Information, in light of the circumstances under in which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Notwithstanding any provision herein or in the Indenture to the contrary, the Collateral Manager shall not be liable for any consequential, indirect, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture regardless of whether such losses or damages are foreseeable and regardless of the form of action. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(i) The Issuer shall indemnify and hold harmless (the Issuer in such case, the “Collateral Manager Indemnifying Party”) the Collateral Manager and Manager, its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a in such case, an “Collateral Manager Issuer Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Issuer Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager any such Issuer Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Final Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, in each case, other than the Collateral Manager Information), the transactions contemplated by the Final Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Issuer Indemnified Party; provided, provided that such Collateral Manager Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts act or omissions omission by any such Collateral Manager Issuer Indemnified Party that constitute one or more constitutes a Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Issuer Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. .
(ii) The Collateral Manager shall indemnify and hold harmless (the Collateral Manager in such case, the “Issuer Indemnifying Party” and, together with the Collateral Manager Indemnifying Party, the “Indemnifying Parties” and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Indemnifying Party”) the Issuer, its Affiliates and their respective Related Persons (each, in such case, a “Collateral Manager Indemnified Party” and, together with the Issuer Indemnified Party, the “Indemnified Parties” and each, an “Indemnified Party”) from and against any and all Losses and will shall promptly reimburse each such Issuer Collateral Manager Indemnified Party for all reasonable Expenses as such Expenses are incurred by an Issuer Indemnified Party with in investigating, preparing, pursuing or defending any actions in respect thereto of or arising out of or in connection with one or more any Collateral Manager Breaches; providedprovided that the Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits.
(c) An Indemnified Party shall (or, with respect to the Related Persons of the Collateral Manager or of the Issuer, as applicable, the Collateral Manager or the Issuer, as applicable, 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 giving rise to a claim for indemnification under this Section 10, but failure to so notify the Indemnifying Party or to comply with paragraph (d) below shall not relieve such Indemnifying Party from its obligations under this Section 10 unless and to the extent that such Indemnifying Party did not otherwise learn of such action or proceeding and to the extent such failure results in the forfeiture by the Indemnifying Party of material rights and defenses.
(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 Related Persons of the Collateral Manager or of the Issuer, as applicable, the Collateral Manager or the Issuer, as applicable, shall cause such Indemnified Party to):
(i) 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;
(ii) 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;
(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, (A) to participate in the investigation, defense and settlement of such claim, and, (B) 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 so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under this Section 10 for any legal fees and expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation, except that, if such Issuer Indemnified Party reasonably determines that counsel selected by the Indemnifying Party has a conflict of interest, such Indemnifying Party shall pay the reasonable fees and disbursements of one additional counsel selected by the Indemnified Party (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; and
(iv) neither incur any material expense to defend against nor make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make which could expose such Indemnified Party to (A) unindemnified liability or (B) only if the Indemnified Party is the IssuerCollateral Manager or an Affiliate or Related Person of the Collateral Manager or of an Affiliate thereof, any liability in respect of which, in the good faith determination of such Issuer Indemnified Party, the Indemnifying Party is unlikely to have sufficient funds available to indemnify the Indemnified Party in full, taking into account the Priority of Payments), nor permit a default or 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.
(e) No Indemnified Party shall, without the prior written consent of the Indemnifying Party, which consent shall not be indemnified unreasonably withheld, settle or compromise any claim giving rise to a claim for indemnity hereunder, or permit a default or consent to the entry of any Losses judgment in respect thereof.
(f) No Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, settle or Expenses incurred compromise or consent to the entry of any judgment with respect to any claim giving rise to a claim for indemnity hereunder if such settlement includes a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.
(g) The compliance of the Collateral Manager’s actions with the provisions of the Indenture and this Agreement shall be determined on the date of action only, based upon the prices and characteristics of the Assets on the date of such action (or on the most recent date practicable, in the case of Collateral Obligations not purchased or sold on such date); provided that the provisions of the Indenture and this Agreement shall not be deemed breached as a result of changes in value, status or any acts other conditions of an investment following the date of such action and the Collateral Manager shall not be responsible under this Agreement for the performance of or omissions any losses on the Assets acquired in accordance with this Agreement.
(h) The Assets shall be held by such the Custodian appointed by the Issuer Indemnified Party that constitute bad faithpursuant to the Indenture. The Collateral Manager and its Affiliates shall at no time have custody or physical control of the Assets. The Collateral Manager shall not be liable for any act or omission of the Custodian, willful misconductthe Collateral Administrator, gross negligence the Calculation Agent or reckless disregard the Trustee or any sub-custodian or other agent appointed by the Calculation Agent or the Issuer. Any compensation owed to the Collateral Administrator, the Trustee or the Calculation Agent for their services to the Issuer shall be the obligation of the Issuer and not the Collateral Manager.
(i) Notwithstanding anything in this Agreement to the contrary, the Collateral Manager’s obligations hereunder will be solely the obligations of the Collateral Manager, and the Issuer will not have any recourse to any Related Person of the Collateral Manager, with respect to any claims, losses, damages, liabilities, indemnities or other obligations in connection with any transactions contemplated hereby.
(j) The Collateral Manager shall not be responsible for any liability resulting from any failure by the Collateral Manager to fulfill its duties under this Agreement if such Issuer Indemnified Party hereunder liability or under failure shall be caused by or directly or indirectly due to a Force Majeure Event, provided that the terms Collateral Manager shall use commercially reasonable efforts to minimize the effect of the same. As used herein, the term “Force Majeure Event” means such an operation of the forces of nature as reasonable foresight and ability could not foresee or reasonably provide against including but not limited to, acts of god, flood, war (whether declared or undeclared), terrorism, fire, strikes or work stoppages for any other Transaction Document applicable to it. For purposes reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of this Section 10, each Placement Agent is an express third party beneficiary of the services contemplated by this Agreement, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond a party’s control whether or not of the same class or kind as specifically named above.
Appears in 1 contract
Samples: Collateral Management Agreement (Garrison Capital Inc.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any Holder, any beneficial owner of the Notes, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, (A) Manager would be subject by reason of (i) acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information Circular Information (as of its date) containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under in which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and each of Owners and their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Final Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Final Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; providedprovided that, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.
Appears in 1 contract
Samples: Collateral Management Agreement (Nuveen Churchill Direct Lending Corp.)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the Issuer, the Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Initial Purchaser, the Co-Placement Agent, any of their respective Affiliates or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Technology Finance Corp. II)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than except that the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer Issuer, the Loan Agent or the Collateral Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the IssuerIssuer or the Collateral Trustee, any Holder, any beneficial owner of Debt, the TrusteePlacement Agents, the Holders any of the Notestheir respective Affiliates, the Preferred Shareholders Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided CM Information in writing by the Collateral Manager expressly for inclusion in the each Offering Circular, such information as of the date made, containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, indirect, special, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. The Collateral Manager and any of its Affiliates may consult with counsel, independent accountants or any other experts selected by them and shall not be liable for any action taken or omitted to be taken by them in accordance with their advice. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and each of Owners and their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance or incurrence, as applicable, of the Securities Debt (including, without limitation, any untrue statement of material fact contained in the each Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than CM Information), the transactions contemplated by the applicable Offering Circular, the Indenture or Indenture, this Agreement Agreement, the other Transaction Documents, any Underlying Instruments and the performance of the Assets and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. .
(c) The Collateral Manager shall indemnify not be responsible or liable for any failure or delay in the performance of its duties and hold harmless obligations under this Agreement and/or the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto Indenture arising out of or in connection caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(d) It is understood that certain provisions of this Agreement may serve to limit the potential liability of the Collateral Manager. The Issuer has had the opportunity to consult with one or more the Collateral Manager Breaches; providedas well as, if desired, its professional advisors and legal counsel as to the effect of these provisions. It is further understood that if such Issuer Indemnified Party is certain applicable laws, including applicable federal or state securities laws, may impose liability or allow for legal remedies even where the IssuerCollateral Manager has acted in good faith and that the rights under those laws may be non-waivable. Nothing in this Agreement shall, such Issuer Indemnified Party shall in any way, constitute a waiver or limitation of any rights which may not be indemnified for any Losses so limited or Expenses incurred as a result waived in accordance with applicable law, including with respect to the breach of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard fiduciary duty owed under Section 206 of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this AgreementAdvisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC 3, Inc.)
Limits of Collateral Manager Responsibility. 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 pursuant to the terms of this Agreement in good faith and, subject to the standard of conduct described in the next succeeding sentencesentence and in Sections 2 and 7. The Collateral Manager, its Affiliates and their respective members, principals, partners, managers, directors, officers, stockholders, employees and agents (collectively, the “ Collateral Manager Affiliates”) will not be liable to the Co-Issuers, the Trustee, the Collateral Administrator, the Preference Share Paying Agent, the Noteholders, the Preference Shareholders or any other Person for any losses, claims, damages, demands, charges, judgments, assessments, costs or other liabilities (collectively, “L iabilities”) incurred by the Co-Issuers, the Trustee, the Preference Share Paying Agent, the Noteholders, the Preference Shareholders or any other Person that arise out of or in connection with the performance by the Collateral Manager of its duties under this Agreement or the Indenture, or for any decrease in the value of the Collateral; provided that the Collateral Manager shall be subject to liability by reason of acts or omissions of the Collateral Manager constituting bad faith, willful misconduct or gross negligence in the performance, or reckless disregard, of the obligations of the Collateral Manager hereunder and under the terms of the Indenture applicable to the Collateral Manager; provided further that in no event shall the Collateral Manager or any Collateral Manager Affiliate be liable for consequential, special, exemplary or punitive damages. Any stated limitations on liability shall not relieve the Collateral Manager from any responsibility it has under any state or Federal statutes. The matters described in the proviso to the second preceding sentence are collectively referred to for purposes of this Agreement as “ Collateral Manager Breaches”. The Collateral Manager shall not be responsible for any action or omission of the Issuer or Issuer, the Trustee or any other Person, including (without limitation) in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) shall , which advice, recommendation or direction does not be liable to the Issuer, the Trustee, the Holders of the Notes, the Preferred Shareholders or any other person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, settlement, cost, or other expense (including attorneys’ fees constitute a Collateral Manager Breach and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of is not inconsistent with the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the Collateral, except, in the case of the Collateral Manager, (A) by reason of acts constituting bad faith, willful misconduct, fraud or gross negligence in the performance of, or reckless disregard of, its duties hereunder and under the terms of the Indenture and (B) with respect to information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement7.
Appears in 1 contract
Samples: Collateral Management Agreement
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Collateral Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the Issuer, the Collateral Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Placement Agent, any of their respective Affiliates or Related Persons or any other person Person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgements, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Owl Rock Core Income Corp.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than except that the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined belowin Section 10(b)) shall not be liable to the Issuer, the Trustee, the Holders any Holder, any beneficial owner of the Notes, any holder of Interests, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided Information in each Offering Circular, including, in each case, any amendment or supplement to such information approved by the Collateral Manager that is contained in any amendment or supplement to the final offering circular ( including any offering circular approved in writing by the Collateral Manager expressly for inclusion additional notes issued pursuant to Section 2.13 of the Indenture, or for replacement securities issued in connection with a Refinancing in part by Class of one or more Classes of Notes, or any offering circular in connection with a Re-Pricing), as of the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, indirect, special, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and each of Owners and their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the each Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than Collateral Manager Information), the transactions contemplated by the applicable Offering Circular, the Indenture or Indenture, this Agreement Agreement, the other Transaction Documents, any Underlying Instruments and the performance of the Assets and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC, Inc.)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Collateral Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates and their respective Related Persons shall not be liable to the Issuer, the Collateral Trustee, the Holders any Holder of Securities, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such (ii) collectively referred to as “Collateral Manager Indemnified Party; provided, that such Breaches”).
(b) The Collateral Manager Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer lost profits under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses Agreement or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in under the Indenture. The Collateral Manager also shall indemnify not be responsible or liable for any failure or delay in the performance of its duties and hold harmless obligations under this Agreement or the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto Indenture arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services. Nothing contained in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party this Agreement shall be deemed to waive any liability which cannot be indemnified for waived under applicable state or federal law or any Losses rules or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementregulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Credit Income Corp.)
Limits of Collateral Manager Responsibility. (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 Credit Agreement applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer Borrower, the Administrative Agent or the Trustee any Lender in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the IssuerBorrower, the TrusteeAdministrative Agent or any Lender, the Holders any holder of the NotesEquity Interests, the Preferred Shareholders BofA Securities, Inc., any of their respective Affiliates or Related Persons or any other person Person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, settlementjudgements, assessments, settlement cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Loan Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralCollateral Assets, except, in the case of except the Collateral Manager, (A) Manager will be liable by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and Credit Agreement (B) with respect to information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). .
(b) The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble special damages or lost profitsprofits under this Agreement or under the Credit Agreement. Nothing contained herein in this Agreement shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.
Appears in 1 contract
Samples: Warehouse Collateral Management Agreement (Owl Rock Core Income Corp.)
Limits of Collateral Manager Responsibility. The Collateral Manager assumes no responsibility under this Agreement other than to render (a) In rendering the services called for hereunder and under the terms of the Indenture applicable to the Collateral Manager, the Collateral Manager assumes no responsibility under this Agreement other than (i) to perform its duties and obligations hereunder and under the terms of the Indenture applicable to it in good faith and (ii) pursuant to this Section 10 and, subject to the standard of conduct described in the next succeeding sentenceforegoing, shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) shall ; provided that the Collateral Manager, its Affiliates and their respective partners, managers, directors, officers, members, stockholders, interest holders, agents and employees will not be liable to the Issuer, the Trustee, the Holders of the Notes, the Preferred Shareholders Noteholders or any other person for any actLosses resulting from any failure to satisfy the Standard of Care, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of except that the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable Manager may be so liable (x) to the Collateral Managerextent set forth in Section 10(b), incurred as a (y) to the extent such Losses are the result of actions taken acts or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the Collateral, except, in the case of the Collateral Manager, (A) by reason of acts constituting bad faith, willful misconduct, fraud willful misfeasance or gross negligence by the Collateral Manager in the performance of, or reckless disregard of, its duties by the Collateral Manager with respect to the obligations of the Collateral Manager hereunder and under the terms of the Indenture and (B) with respect applicable to information concerning the Collateral Manager provided in writing and (z) to the extent that any representation or warranty made by the Collateral Manager expressly pursuant to this Agreement as it relates to information provided by the Collateral Manager for inclusion in the Offering Circular, such information containing Circular shall prove to be incorrect in any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading respect when made (such matters described in clauses (Ay) and (Bz) above collectively being referred to herein as a “Collateral Manager BreachesBreach”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(i) The Issuer shall indemnify and hold harmless (the Issuer in such case, the “Indemnifying Party”) the Collateral Manager and its Affiliates and each of their respective directors, managers, officers, shareholdersstockholders, members, partners, members, agents and employees (eacheach such party being, a in such case, an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs Losses (excluding any Losses in respect of or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission such Indemnified Party’s election to state a material fact necessary in order to make the statements in the Offering Circularacquire Collateral Debt Obligations as principal), in light respect of the circumstances under which they were made, not misleading), the transactions contemplated by the Offering Circular, the Indenture or this Agreement and any arising from acts or omissions of any such Indemnified Party made in the performance of the Collateral Manager’s duties under this Agreement and the Indenture and not constituting a Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or shall constitute Administrative Expenses are limited recourse obligations of the Issuer and shall be payable solely out of the Collateral in accordance with the Priority of Payments priorities set forth in Section 11.01 of the Indenture. .
(ii) The Collateral Manager shall indemnify and hold harmless (the Issuer and Collateral Manager in such case, the Placement Agent and their respective “Indemnifying Party”) the Issuer, its Affiliates (and each of their respective directors, officers, stockholders, partners, members, agents and employees) employees in such capacity and for the benefit of the Holders of the Secured Notes (the Issuer, its Affiliates and each of their respective directors, officers, stockholders, partners, members, agents and employees being each, in such case, an “Issuer Indemnified Party”) from and against any and all Losses arising from or in respect of Collateral Manager Breaches. No member, partner, manager, director, officer, stockholder, interest holder or employee of the Collateral Manager shall be liable for the Collateral Manager’s obligations hereunder.
(iii) If for any reason the indemnity provided for in this Section 10 is unavailable, then the Indemnifying Party shall contribute to the amount paid or payable by the Indemnified Party as a result of any Losses that do not arise from Collateral Manager Breaches: (A) in such proportion as is appropriate to reflect the relative benefits received by the Indemnifying Party on the one hand and will the Indemnified Party on the other hand or (B) if the allocation provided by clause (A) above is not permitted by applicable law or provides a lesser sum to the Indemnified Party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits received by the Indemnifying Party on the one hand and the Indemnified Party on the other but also the relative fault of the Indemnifying Party and the Indemnified Party as well as any other relevant equitable considerations.
(c) The compliance of the Collateral Manager’s actions with the provisions of the Indenture and this Agreement shall be determined on the date of action only, based upon the prices and characteristics of the Collateral on the date of such action (or on the most recent date practicable, in the case of Collateral Debt Obligations not purchased or sold on such date); the provisions of the Indenture and this Agreement shall not be deemed breached as a result of changes in value, status or any other conditions of an investment following the date of such action.
(d) The Collateral shall be held by the Trustee appointed by the Issuer pursuant to the Indenture. The Collateral Manager and its Affiliates shall at no time have custody or physical control of Collateral. The Collateral Manager shall not be liable for any act or omission of the Trustee, the Collateral Administrator or any sub-custodian or prime broker appointed by the Collateral Administrator, the Calculation Agent or the Issuer. Any compensation to the Trustee, the Calculation Agent or the Collateral Administrator for their services to the Issuer shall be the obligation of the Issuer and not the Collateral Manager.
(e) An Indemnified Party shall (or, with respect to the Collateral Manager’s directors, managers, officers, stockholders, members, partners, agents and employees the Collateral Manager shall cause such Indemnified Party to) promptly reimburse each 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 or to comply with Section 10(g) shall not relieve such Issuer Indemnifying Party from its obligations under paragraph Section 10(c) unless and to the extent that such Indemnifying Party 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.
(f) 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 directors, managers, officers, stockholders, members, partners, agents, interest holders and employees, the Collateral Manager shall cause such Indemnified Party to), at the Indemnifying Party’s expense:
(i) provide the Indemnifying Party with 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 Expenses 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 reasonably 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 so to 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, in each case subsequently incurred by an Issuer such Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation unless such Indemnified Party reasonably determines that counsel selected by the Indemnifying Party has a conflict of interest, such Indemnifying Party shall pay the reasonable fees and disbursements of one additional counsel selected by the Indemnified Party (in additional 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; and
(iv) neither incur any material expense to defend against nor release or settle any such claim or make any admission with respect thereto arising out of (other than routine or in connection with one incontestable admission or more Collateral Manager Breaches; provided, factual admissions the failure to make that could expose such Indemnified Party to (A) unindemnified liability or (B) only if such Issuer the Indemnified Party is the IssuerCollateral Manager or any of its partners, directors, officers, members, stockholders, employees and Affiliates, 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 Section 11.01 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.
(g) No Indemnified Party shall, without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, 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; provided that if the Indemnified Party is the Collateral Manager, or any of its directors, managers, officers, stockholders, members, partners, agents, interest holders, employees and Affiliates, such Issuer Indemnified Party shall not be indemnified 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 Section 11.01 of the Indenture.
(h) No Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed, settle or compromise any claim giving rise to a claim for any Losses indemnity hereunder if such settlement includes a statement as to or Expenses incurred as an admission of fault, culpability or a result failure to act by or on behalf of an Indemnified Party, or permit a default or consent to the entry of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementjudgment in respect thereof.
Appears in 1 contract
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Collateral Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the Issuer, the Collateral Trustee, the Holders any Holder of Debt, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates or Related Persons or any other person Person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgements, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Credit Income Corp.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than except that the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any Holder, any beneficial owner of the Notes, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided CM Information in writing by the Collateral Manager expressly for inclusion in the each Offering Circular, such information as of the date made, containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, indirect, special, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. The Collateral Manager and any of its Affiliates may consult with counsel, independent accountants or any other experts selected by them and shall not be liable for any action taken or omitted to be taken by them in accordance with their advice. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and each of Owners and their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the each Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than CM Information), the transactions contemplated by the applicable Offering Circular, the Indenture or Indenture, this Agreement Agreement, the other Transaction Documents, any Underlying Instruments and the performance of the Assets and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. .
(c) The Collateral Manager shall indemnify not be responsible or liable for any failure or delay in the performance of its duties and hold harmless obligations under this Agreement and/or the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto Indenture arising out of or in connection caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(d) It is understood that certain provisions of this Agreement may serve to limit the potential liability of the Collateral Manager. The Issuer has had the opportunity to consult with one or more the Collateral Manager Breaches; providedas well as, if desired, its professional advisors and legal counsel as to the effect of these provisions. It is further understood that if such Issuer Indemnified Party is certain applicable laws, including applicable federal or state securities laws, may impose liability or allow for legal remedies even where the IssuerCollateral Manager has acted in good faith and that the rights under those laws may be non-waivable. Nothing in this Agreement shall, such Issuer Indemnified Party shall in any way, constitute a waiver or limitation of any rights which may not be indemnified for any Losses so limited or Expenses incurred as a result waived in accordance with applicable law, including with respect to the breach of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard fiduciary duty owed under Section 206 of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this AgreementAdvisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital Private Credit Fund)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates or their respective Related Persons assumes no any responsibility under this Agreement Agreement, other than the Collateral Manager’s assumption of its responsibility to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith andfaith, subject to the standard Standard of conduct Care described in the next succeeding sentence, Section 2(b). The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager, including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders of the Notesany Holder, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates, or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of or with respect to any investment, investment or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning caused by (x) an untrue statement of a material fact included in the Collateral Manager provided in writing Information or (y) the omission by the Collateral Manager expressly for inclusion in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement thereinstatements in the Collateral Manager Information, in light of the circumstances under in which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(i) The Issuer shall indemnify and hold harmless (the Issuer in such case, the “Indemnifying Party”) the Collateral Manager and Manager, its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Offering Circular Circulars, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, in each case, other than the Collateral Manager Information), the transactions contemplated by the Offering CircularCirculars, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts act or omissions omission by any such Collateral Manager Indemnified Party that constitute one or more constitutes a Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. .
(ii) The Collateral Manager shall indemnify and hold harmless (the Issuer and Collateral Manager in such case, the Placement Agent “Indemnifying Party”) the Issuer, its Affiliates and their respective Affiliates Related Persons (and each of their directorssuch party being, officers, stockholders, partners, members, agents and employees) (eachin such case, an “Issuer Indemnified Party”) from and against any and all Losses and will shall promptly reimburse each such Issuer Indemnified Party for all reasonable Expenses as such Expenses are incurred by an Issuer Indemnified Party with in investigating, preparing, pursuing or defending any actions in respect thereto of or arising out of or in connection with one or more any Collateral Manager Breaches; provided, that the Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits.
(c) An Indemnified Party shall (or, with respect to the Related Persons of the Collateral Manager or of the Issuer, as applicable, the Collateral Manager or the Issuer, as applicable, 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 giving rise to a claim for indemnification under this Section 10, but failure to so notify the Indemnifying Party or to comply with paragraph (d) below shall not relieve such Indemnifying Party from its obligations under this Section 10 unless and to the extent that such Indemnifying Party did not otherwise learn of such action or proceeding and to the extent such failure results in the forfeiture by the Indemnifying Party of material rights and defenses.
(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 Related Persons of the Collateral Manager or of the Issuer, as applicable, the Collateral Manager or the Issuer, as applicable, shall cause such Indemnified Party to):
(i) 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;
(ii) 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;
(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, (A) to participate in the investigation, defense and settlement of such claim, and, (B) 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 so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under this Section for any legal fees and expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation, except that, if such Issuer Indemnified Party reasonably determines that counsel selected by the Indemnifying Party has a conflict of interest, such Indemnifying Party shall pay the reasonable fees and disbursements of one additional counsel selected by the Indemnified Party (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; and
(iv) neither incur any material expense to defend against nor make any admission with respect thereto (other than routine or incontestable admissions or factual admissions the failure to make which could expose such Indemnified Party to (A) unindemnified liability or (B) only if the Indemnified Party is the IssuerCollateral Manager or an Affiliate or Related Person of the Collateral Manager or of an Affiliate thereof, 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 Priority of Payments), nor permit a default or 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.
(e) No Indemnified Party shall, without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, 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; provided that if the Indemnified Party is the Collateral Manager or an Affiliate or a Related Person of the Collateral Manager or of an Affiliate thereof, such Issuer Indemnified Party shall not be indemnified 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 Priority of Payments.
(f) No Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, settle or compromise or consent to the entry of any judgment with respect to any claim giving rise to a claim for indemnity hereunder if such settlement includes a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Losses Indemnified Party.
(g) The compliance of the Collateral Manager’s actions with the provisions of the Indenture and this Agreement shall be determined on the date of action only, based upon the prices and characteristics of the Assets on the date of such action (or Expenses incurred on the most recent date practicable, in the case of Collateral Obligations not purchased or sold on such date); provided that the provisions of the Indenture and this Agreement shall not be deemed breached as a result of changes in value, status or any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard other conditions of an investment following the obligations date of such Issuer Indemnified Party hereunder action and the Collateral Manager shall not be responsible under this Agreement for the performance of or under any losses on the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of Assets acquired in accordance with this Agreement.
(h) The Assets shall be held by the Custodian appointed by the Issuer pursuant to the Indenture. The Collateral Manager and its Affiliates shall at no time have custody or physical control of the Assets. The Collateral Manager shall not be liable for any act or omission of the Custodian, the Collateral Administrator, the Calculation Agent or the Trustee or any sub-custodian or other agent appointed by the Calculation Agent or the Issuer. Any compensation owed to the Collateral Administrator, the Trustee or the Calculation Agent for their services to the Issuer shall be the obligation of the Issuer and not the Collateral Manager.
Appears in 1 contract
Samples: Collateral Management Agreement (Garrison Capital LLC)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates or their respective Related Persons assumes no any responsibility under this Agreement Agreement, other than the Collateral Manager’s assumption of its responsibility to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith andfaith, subject to the standard Standard of conduct Care described in the next succeeding sentence, Section 2(a). The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager, including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders of the Notesany Holder, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates, or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of or with respect to any investment, investment or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under in which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(i) The Issuer shall indemnify and hold harmless (the Issuer in such case, the “Indemnifying Party”) the Collateral Manager and Manager, its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Offering Circular Circulars, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleadingmisleading other than the Collateral Manager Information), the transactions contemplated by the Offering CircularCirculars, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faitha Collateral Manager Breach. Notwithstanding anything contained herein to the contrary, willful misconduct, gross negligence or reckless disregard of the obligations of such the Issuer under this Section 10 to indemnify any Indemnified Party hereunder for any Losses or under Expenses are non-recourse obligations of the terms Issuer payable solely out of the Assets in accordance with the Priority of Payments set forth in the Indenture.
(ii) The Collateral Manager shall indemnify and hold harmless (the Collateral Manager in such case, the “Indemnifying Party”) the Issuer, its Affiliates and their respective Related Persons (each such party being, in such case, an “Indemnified Party”) from and against any and all Losses and shall promptly reimburse each such Indemnified Party for all reasonable Expenses as such Expenses are incurred in investigating, preparing, pursuing or defending any Actions in respect of or arising out of any Collateral Manager Breaches; provided, however, that the Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits.
(c) An Indemnified Party shall (or, with respect to the Related Persons of the Collateral Manager or of the Issuer, as applicable, the Collateral Manager or the Issuer, as applicable, shall cause such Indemnified Party to) promptly notify the Indemnifying Party if the Indemnified Party receives a complaint, claim, compulsory process or other Transaction Document applicable notice of any Loss giving rise to it. For purposes of a claim for indemnification under this Section 10, but failure so to notify the Indemnifying Party or to comply with paragraph (d) below shall not relieve such Indemnifying Party from its obligations under this Section 10 unless and to the extent that such Indemnifying Party did not otherwise learn of such action or proceeding and to the extent such failure results in the forfeiture by the Indemnifying Party of material rights and defenses.
(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 Related Persons of the Collateral Manager or of the Issuer, as applicable, the Collateral Manager or the Issuer, as applicable, shall cause such Indemnified Party to):
(i) 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;
(ii) 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;
(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, (A) to participate in the investigation, defense and settlement of such claim, and, (B) 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 so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under such subsection for any legal fees and expenses of other counsel or any other expenses, in each Placement Agent case subsequently incurred by such Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation, except that, if such Indemnified Party reasonably determines that counsel selected by the Indemnifying Party has a conflict of interest, such Indemnifying Party shall pay the reasonable fees and disbursements of one additional counsel selected by the Indemnified Party (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; and
(iv) neither incur any material expense to defend against nor make any admission with respect thereto, nor permit a default or 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.
(e) No Indemnified Party shall, without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, 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; provided that if the Indemnified Party is the Collateral Manager or an express third party beneficiary Affiliate or a Related Person of the Collateral Manager or of an Affiliate thereof, 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 Priority of Payments.
(f) No Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, settle or compromise or consent to the entry of any judgment with respect to any claim giving rise to a claim for indemnity hereunder if such settlement includes a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.
(g) The compliance of the Collateral Manager’s actions with the provisions of the Indenture and this Agreement shall be determined on the date of action only, based upon the prices and characteristics of the Assets on the date of such action (or on the most recent date practicable, in the case of Collateral Obligations not purchased or sold on such date); provided that the provisions of the Indenture and this Agreement shall not be deemed breached as a result of changes in value, status or any other conditions of an investment following the date of such action and the Collateral Manager shall not be responsible under this Agreement for the performance of or any losses on the Assets acquired in accordance with this Agreement.
(h) The Assets shall be held by the Custodian appointed by the Issuer pursuant to the Indenture. The Collateral Manager and its Affiliates shall at no time have custody or physical control of the Assets. The Collateral Manager shall not be liable for any act or omission of the Collateral Administrator, the Trustee or any sub-custodian or other agent appointed by the Calculation Agent or the Issuer. Any compensation owed to the Collateral Administrator, the Trustee or the Calculation Agent for their services to the Issuer shall be the obligation of the Issuer and not the Collateral Manager.
Appears in 1 contract
Samples: Collateral Management Agreement (TICC Capital Corp.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than except that the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, Issuer or the Trustee, the Holders any Holder, any beneficial owner of the Notes, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided CM Information in writing by the Collateral Manager expressly for inclusion in the each Offering Circular, such information as of the date made, containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, indirect, special, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. The Collateral Manager and any of its Affiliates may consult with counsel, independent accountants or any other experts selected by them and shall not be liable for any action taken or omitted to be taken by them in accordance with their advice. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and each of Owners and their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the each Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than CM Information), the transactions contemplated by the applicable Offering Circular, the Indenture or Indenture, this Agreement Agreement, the other Transaction Documents, any Underlying Instruments and the performance of the Assets and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. .
(c) The Collateral Manager shall indemnify not be responsible or liable for any failure or delay in the performance of its duties and hold harmless obligations under this Agreement and/or the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto Indenture arising out of or in connection caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(d) It is understood that certain provisions of this Agreement may serve to limit the potential liability of the Collateral Manager. The Issuer has had the opportunity to consult with one or more the Collateral Manager Breaches; providedas well as, if desired, its professional advisors and legal counsel as to the effect of these provisions. It is further understood that if such Issuer Indemnified Party is certain applicable laws, including applicable federal or state securities laws, may impose liability or allow for legal remedies even where the IssuerCollateral Manager has acted in good faith and that the rights under those laws may be non-waivable. Nothing in this Agreement shall, such Issuer Indemnified Party shall in any way, constitute a waiver or limitation of any rights which may not be indemnified for any Losses so limited or Expenses incurred as a result waived in accordance with applicable law, including with respect to the breach of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard fiduciary duty owed under Section 206 of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this AgreementAdvisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC 3, Inc.)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Collateral Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the Issuer, the Collateral Trustee, the Holders any Holder of Securities or Secured Debt, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Blue Owl Technology Finance Corp. II)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager, its Affiliates, its Owners or their respective Related Persons (each, a “Collateral Manager Party”) assumes no any responsibility under this Agreement other than except that the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture Credit Agreement applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer Borrower or the Trustee Collateral Agent in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Collateral Manager Parties (as defined below) shall not be liable to the IssuerBorrower, the TrusteeAdministrative Agent, the Holders Collateral Agent, any Lender, any other Secured Party or any of the Notestheir respective Affiliates, the Preferred Shareholders Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Loan Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the Collateral, except, except for liability as and to the extent specified in the case of Section 10(c) to which the Collateral Manager, (A) Manager would be subject by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and (B) with respect to information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information containing any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading Credit Agreement (such matters described in (A) and (B) above bad faith, willful misconduct or gross negligence being collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, indirect, special, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Credit Agreement. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer Borrower shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) Parties from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the extensions of the Loans and the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading)Subordinated Notes, the transactions contemplated by the Offering CircularCredit Agreement, this Agreement, the Indenture or this Agreement other Loan Documents and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer Borrower under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer Borrower payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. Credit Agreement.
(c) The Collateral Manager shall indemnify and hold harmless the Issuer Borrower, its Affiliates and the Placement Agent Owners and their respective Affiliates Related Persons (and in each of their directorssuch case, officers, stockholders, partners, members, agents and employees) (each, an a “Issuer Borrower Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Borrower Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more a Collateral Manager BreachesBreach; provided, provided that if such Issuer Indemnified Party is the Issuer, such Issuer Borrower Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Borrower Indemnified Party that constitute bad faith, willful misconduct, misconduct or gross negligence or reckless disregard of the obligations of by such Issuer Borrower Indemnified Party hereunder or under the terms of any other Transaction Loan Document applicable to it. For purposes No partners, members, managers, stockholders, directors, officers, employees or agents of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementthe Collateral Manager shall be liable for the Collateral Manager’s obligations hereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital Private Credit Fund)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any Holder, any beneficial owner of the Notes, the Preferred Shareholders Initial Purchaser, the Co-Placement Agent, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgments, assessments, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, (A) Manager would be subject by reason of (i) acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by the Collateral Manager expressly for inclusion in the Offering Circular, such information Circular Information (as of its date) containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under in which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and each of Owners and their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Final Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading), the transactions contemplated by the Final Offering Circular, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; providedprovided that, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreement.
Appears in 1 contract
Samples: Collateral Management Agreement (Nuveen Churchill Private Capital Income Fund)
Limits of Collateral Manager Responsibility. (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 in good faith and, subject to the standard of conduct described in the next succeeding sentence, and shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral Manager. The Indemnified Parties (as defined below) Collateral Manager, its Affiliates, and their respective Related Persons shall not be liable to the IssuerIssuers, the Trustee, the Holders Holders, any holder of the NotesIssuer’s ordinary shares, the Preferred Shareholders Placement Agent, the Co-Placement Agent, any of their respective Affiliates or Related Persons or any other person Person for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, loss liability damage, settlementjudgements, assessments, settlement cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager will be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder under this Agreement and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement therein, in light of the circumstances under which they are made, not misleading (such matters described in (A) and (B) above collectively being referred to herein as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profits. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. The Issuer shall indemnify and hold harmless the Collateral Manager and its Affiliates and each of their directors, officers, shareholders, partners, members, agents and employees (each, a “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities (including, without limitation, any untrue statement of material fact contained in the Offering Circular or omission or alleged omission to state a material fact necessary in order to make the statements in the Offering Circular, in light of the circumstances under which they were made, not misleading), misleading (the transactions contemplated by the Offering Circular, the Indenture or this Agreement preceding clauses (i) and any acts or omissions of any such Collateral Manager Indemnified Party; provided, that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred (ii) collectively referred to as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more “Collateral Manager Breaches. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited recourse obligations of the Issuer payable solely out of the Collateral in accordance with the Priority of Payments set forth in the Indenture. ”).
(b) The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified liable for any Losses consequential, punitive, exemplary or Expenses incurred as a result of any acts special damages or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder lost profits under this Agreement or under the terms of Indenture. Nothing contained in this Agreement shall be deemed to waive any other Transaction Document liability which cannot be waived under applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this Agreementstate or federal law or any rules or regulations thereunder.
Appears in 1 contract
Samples: Collateral Management Agreement (Owl Rock Capital Corp)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its Affiliates, its Owners or their respective Related Persons assumes no any responsibility under this Agreement other than except that the Collateral Manager agrees to render the services called for required to be performed by it hereunder and under the terms of the Indenture applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any Holder, any beneficial owner of the Notes, the Preferred Shareholders Initial Purchaser, any of their respective Affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except for liability to which the Collateral Manager, Manager would be subject (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided CM Information in writing by the Collateral Manager expressly for inclusion in the each Offering Circular, such information as of the date made, containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, indirect, special, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. The Collateral Manager and any of its Affiliates may consult with counsel, independent accountants or any other experts selected by them and shall not be liable for any action taken or omitted to be taken by them in accordance with their advice. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager and Manager, its Affiliates and each of Owners and their directors, officers, shareholders, partners, members, agents and employees respective Related Persons (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the each Offering Circular Circular, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than CM Information), the transactions contemplated by the applicable Offering Circular, the Indenture or Indenture, this Agreement Agreement, the other Transaction Documents, any Underlying Instruments and the performance of the Assets and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. .
(c) The Collateral Manager shall indemnify not be responsible or liable for any failure or delay in the performance of its duties and hold harmless obligations under this Agreement and/or the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto Indenture arising out of or in connection caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(d) It is understood that certain provisions of this Agreement may serve to limit the potential liability of the Collateral Manager. The Issuer has had the opportunity to consult with one or more the Collateral Manager Breaches; providedas well as, if desired, its professional advisors and legal counsel as to the effect of these provisions. It is further understood that if such Issuer Indemnified Party is certain applicable laws, including applicable federal or state securities laws, may impose liability or allow for legal remedies even where the IssuerCollateral Manager has acted in good faith and that the rights under those laws may be non-waivable. Nothing in this Agreement shall, such Issuer Indemnified Party shall in any way, constitute a waiver or limitation of any rights which may not be indemnified for any Losses so limited or Expenses incurred as a result waived in accordance with applicable law, including with respect to the breach of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard fiduciary duty owed under Section 206 of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this AgreementAdvisers Act.
Appears in 1 contract
Samples: Collateral Management Agreement (Golub Capital BDC 3, Inc.)
Limits of Collateral Manager Responsibility. The (a) None of the Collateral Manager Manager, its affiliates, its Owners or their respective Related Persons nor any Independent Review Party assumes no any responsibility under this Agreement other than the Collateral Manager assumes responsibility to render the services called for hereunder required to be performed by it hereunder, and under the terms of the Indenture and the Master Loan Sale Agreement applicable to it in good faith and, subject to the standard of conduct described in the next succeeding sentence, it. The Collateral Manager shall not be responsible for any action or inaction of the Issuer or the Trustee in following or declining to follow any advice, recommendation or direction of the Collateral ManagerManager including as set forth in Section 7. The Indemnified Parties (as defined below) shall not be liable to the Issuer, the Trustee, the Holders any Holder of the Notes, any holder of Interests, the Preferred Shareholders Initial Purchaser, any of their respective affiliates, Owners or Related Persons or any other person Persons for any act, omission, error of judgment, mistake of law, or for any claim, loss, liability, damage, judgment, assessment, settlement, cost, or other expense (including attorneys’ fees and expenses and court costs) arising out of any investment, or for any other act or omission in the performance of the Collateral Manager’s obligations under or in connection with this Agreement or the terms of any other Transaction Document applicable to the Collateral Manager, incurred as a result of actions taken or recommended or for any omissions of the Collateral Manager, or for any decrease in the value of the CollateralAssets, except, in the case of except the Collateral Manager, Manager shall be liable (Ai) by reason of acts or omissions constituting bad faith, willful misconduct, fraud misconduct or gross negligence in the performance of, or reckless disregard of, of its duties hereunder and under the terms of the Indenture and or (Bii) with respect to information concerning the Collateral Manager provided in writing by Information, as of the Collateral Manager expressly for inclusion in the Offering Circulardate made, such information containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statement statements therein, in light of the circumstances under which they are were made, not misleading (such matters described in the preceding clauses (Ai) and (Bii) above collectively being referred to herein for purposes of this Section 10 as “Collateral Manager Breaches”). The Collateral Manager shall not be liable for any consequential, punitive, exemplary or treble damages or lost profitsprofits hereunder or under the Indenture. Nothing contained herein shall be deemed to waive any liability which cannot be waived under applicable state or federal law or any rules or regulations adopted thereunder. .
(b) The Issuer shall indemnify and hold harmless the Collateral Manager Manager, its affiliates and its Affiliates Owners and their respective Related Persons and each of their directorsIndependent Review Party, officersif any, shareholders, partners, members, agents and employees (each, a an “Collateral Manager Indemnified Party”) from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities (collectively, “Losses”) and will promptly reimburse each such Collateral Manager Indemnified Party for all reasonable fees and expenses incurred by a Collateral Manager an Indemnified Party with respect thereto (including reasonable fees and expenses of counsel) (collectively, “Expenses”) arising out of or in connection with the issuance of the Securities Notes (including, without limitation, any untrue statement of material fact contained in the Offering Circular Circulars, or omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the Offering Circular, in light of the circumstances under which they were made, not misleading, other than Collateral Manager Information), the transactions contemplated by the Offering CircularCirculars, the Indenture or this Agreement and any acts or omissions of any such Collateral Manager Indemnified Party; provided, provided that such Collateral Manager Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by any such Collateral Manager Indemnified Party that constitute one or more Collateral Manager BreachesBreach. Notwithstanding anything contained herein to the contrary, the obligations of the Issuer under this Section 10 to indemnify any Collateral Manager Indemnified Party for any Losses or Expenses are limited non-recourse obligations of the Issuer payable solely out of the Collateral Assets in accordance with the Priority of Payments set forth in the Indenture. The Collateral Manager shall indemnify and hold harmless the Issuer and the Placement Agent and their respective Affiliates (and each of their directors, officers, stockholders, partners, members, agents and employees) (each, an “Issuer Indemnified Party”) from and against any and all Losses and will promptly reimburse each such Issuer Indemnified Party for all Expenses incurred by an Issuer Indemnified Party with respect thereto arising out of or in connection with one or more Collateral Manager Breaches; provided, that if such Issuer Indemnified Party is the Issuer, such Issuer Indemnified Party shall not be indemnified for any Losses or Expenses incurred as a result of any acts or omissions by such Issuer Indemnified Party that constitute bad faith, willful misconduct, gross negligence or reckless disregard of the obligations of such Issuer Indemnified Party hereunder or under the terms of any other Transaction Document applicable to it. For purposes of this Section 10, each Placement Agent is an express third party beneficiary of this AgreementPayments.
Appears in 1 contract
Samples: Collateral Management Agreement (NewStar Financial, Inc.)
