Notice and Settlement of Claims. Subservicer will be responsible for the management and administration of all loan level Actions relating to the Mortgage Loans, as set forth in the Servicing Agreement. Without limiting the applicability of any other notice provisions in this Agreement, Subservicer shall provide notice of any non-routine litigation or other indemnifiable matter involving Xxxxxx Xxx, an Asset or the Servicing Rights by sending an e-mail to [xxxxxxxxxxxxxxxxxxxxxxxxx_xxxxxxxxxx@xxxxxxxxx.xxx], or by such other means as may be reasonably requested by Xxxxxx Xxx, within ten (10) days of its receipt or knowledge thereof. provided, that if it is necessary to answer or respond to any such claim or take any other action within a shorter timeframe in order reduce the likelihood of success of such claim or the Losses that may result, Subservicer shall provide earlier notice thereof, and Xxxxxx Xxx shall have no liability for any Losses resulting from a delay in delivery of such notice by Subservicer. Such notice shall include all available information relevant to the Action or claim, as well as to the question whether a third party (such as a Prior Servicer) should be notified of and/or assume control of responding to or defending the Claim, to the extent known by Subservicer. Xxxxxx Xxx shall have the right to assume some or all of the control or defense of any subservicing claim or Action, including by transfer of some or all of the control or defense of such subservicing claim to a Prior Servicer or other third party. In connection therewith, Subservicer shall make available such information and assistance as Xxxxxx Xxx or such Prior Servicer or other third party may reasonably request, including any witnesses, pertinent records, materials and information in Subservicer’s possession or under Subservicer’s control, at Fannie Mae’s, Prior Servicer’s or other third party’s expense. If Subservicer retains control over the defense of a subservicing claim or Action as permitted herein, Subservicer and Xxxxxx Xxx (and to the extent requested by Xxxxxx Xxx, the applicable Prior Servicer or other third party) shall confer in good faith, and Subservicer shall reasonably consider suggestions from Xxxxxx Xxx and its counsel regarding the control or defense of the subservicing claim or Action. The parties may jointly agree upon counsel reasonably acceptable to such parties to represent them to defend the subservicing claim, and when appropriate, shall enter into joint defense agreements for retaining joint counsel. Subservicer shall follow any directions from Xxxxxx Xxx to bill all or any portion of the Losses or any cost or expenses of the defense of such subservicing claim to a third party, provided that Xxxxxx Xxx shall remain liable for such amounts to the extent provided in this Agreement. Each Party to this Agreement shall promptly (but in all cases within ten (10) days and in accordance with Section 6.1(b)) notify the other Party in writing of the existence of any matter known to it giving rise to any obligation of the other Party under this Section 9.2 and, in the case of any Claim brought by a third party which may give rise to any such obligation, each Party shall promptly (but in all cases within ten (10) days and in accordance with Section 6.1(b)) notify the other Party of the making of such Claim or the commencement of such action by a third party as and when same becomes known to it. Subject to Applicable Requirements and to Section 9.2(d), the indemnifying Party (the “Indemnifying Party”) may, at its own cost and expense, assume and control the defense of any third-party claim, including, without limitation, the right to designate counsel and to control all negotiations, litigation, settlements, compromises and appeals of any such claim or potential claim; provided, however, that the counsel is reasonably satisfactory to the indemnified Party (“Indemnified Party”) in the exercise of its reasonable discretion. The Party not controlling the defense or prosecution of any such third-party claim may participate at its own cost and expense. Following the full discharge of the Indemnifying Party’s obligations, the Indemnified Party shall, subject to Applicable Requirements or other requirements of Xxxxxx Xxx, assign to the Indemnifying Party any and all related claims against third parties. Subject to Applicable Requirements, promptly after receipt, the Indemnified Party shall refund to the Indemnifying Party the amounts of all recoveries received by the Indemnified Party with respect to any claim with respect to which it was also reimbursed for Losses by the Indemnifying Party. Subject to Applicable Requirements, following the receipt of written notice from the Indemnified Party of a demand for indemnification, the Indemnifying Party shall seek to cure the problem giving rise to the demand, if possible, and pay the amount for which it is liable, or otherwise take the actions which it is required to take within thirty (30) days or such other time as may be required by Xxxxxx Xxx, the Insurer or other third-party claimant. Subject to Applicable Requirements, as to any claim for indemnity for which notice is given as hereinbefore provided, the corresponding obligation of indemnity shall continue to survive until whichever of the following events first occurs: (i) the Indemnifying Party shall have discharged its obligation of indemnity to the Indemnified Party with respect to such claim, as required hereunder; (ii) a court of competent jurisdiction shall have finally determined that the Indemnifying Party is not liable to the Indemnified Party with respect to such claim; or (iii) the Indemnified Party shall have released in writing (or be held by a court of competent jurisdiction to have released) the Indemnifying Party from any liability with respect to such claim.
Appears in 2 contracts
Samples: Subservicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC), Subservicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC)
Notice and Settlement of Claims. Subservicer will be responsible for the management and administration of all loan level Actions relating to the Mortgage Loans, as set forth in the Servicing Agreement. Without limiting the applicability of any other notice provisions in this Agreement, Subservicer shall provide notice of any non-routine litigation or other indemnifiable matter involving Xxxxxx Xxx, an Asset or the Servicing Rights by sending an e-mail to [xxxxxxxxxxxxxxxxxxxxxxxxx_xxxxxxxxxx@xxxxxxxxx.xxx], or by such other means as may be reasonably requested by Xxxxxx Xxx, within ten (10a) days of its receipt or knowledge thereof. provided, that if it is necessary to answer or respond to any such claim or take any other action within a shorter timeframe in order reduce the likelihood of success of such claim or the Losses that may result, Subservicer shall provide earlier notice thereof, and Xxxxxx Xxx shall have no liability for any Losses resulting from a delay in delivery of such notice by Subservicer. Such notice shall include all available information relevant to the Action or claim, as well as to the question whether a third party (such as a Prior Servicer) should be notified of and/or assume control of responding to or defending the Claim, to the extent known by Subservicer. Xxxxxx Xxx shall have the right to assume some or all of the control or defense of any subservicing claim or Action, including by transfer of some or all of the control or defense of such subservicing claim to a Prior Servicer or other third party. In connection therewith, Subservicer shall make available such information and assistance as Xxxxxx Xxx or such Prior Servicer or other third party may reasonably request, including any witnesses, pertinent records, materials and information in Subservicer’s possession or under Subservicer’s control, at Fannie Mae’s, Prior Servicer’s or other third party’s expense. If Subservicer retains control over the defense of a subservicing claim or Action as permitted herein, Subservicer and Xxxxxx Xxx (and to the extent requested by Xxxxxx Xxx, the applicable Prior Servicer or other third party) shall confer in good faith, and Subservicer shall reasonably consider suggestions from Xxxxxx Xxx and its counsel regarding the control or defense of the subservicing claim or Action. The parties may jointly agree upon counsel reasonably acceptable to such parties to represent them to defend the subservicing claim, and when appropriate, shall enter into joint defense agreements for retaining joint counsel. Subservicer shall follow any directions from Xxxxxx Xxx to bill all or any portion of the Losses or any cost or expenses of the defense of such subservicing claim to a third party, provided that Xxxxxx Xxx shall remain liable for such amounts to the extent provided in this Agreement. Each Party to this Agreement shall promptly (but in all cases within ten (10) days and in accordance with Section 6.1(b)) notify the other Party in writing of the existence of any matter material fact known to it giving rise to any obligation obligations of the other any Party under this Section 9.2 Article 9 and, in the case of any Claim brought by a third party party, which may give rise to any such obligationobligations, each Party shall promptly (but in all cases within ten (10) days and in accordance with Section 6.1(b)) notify the other Party of the making of such Claim or the commencement of such action by a third party as and when same becomes known to it. Subject The failure to Applicable Requirements provide notice in such manner shall not relieve the Party receiving such notice of any obligation to indemnify or reimburse any other Party hereunder unless such failure materially prejudices the rights or increases the liability of the Party receiving such notice with respect to the matter as to which such notice relates, and then such Party's obligation to Section 9.2(d), indemnify or reimburse hereunder shall be reduced only by the amount that it actually has been damaged thereby. The indemnifying Party (the “"Indemnifying Party”") may, at its own cost and expenseexpenses, assume and control the defense of any third-party claimClaim, including, without limitation, the right to designate counsel and to control control, all negotiations, litigation, settlements, compromises and appeals of any such claim Claim or potential claimClaim; provided, however, provided that the such counsel is reasonably shall be satisfactory to the indemnified Party (“"Indemnified Party”") in the exercise of its reasonable discretion. The Party not controlling the defense or prosecution of any such third-party claim Claim may participate at its own cost costs and expense. Notwithstanding the foregoing, if Purchaser is the Indemnified Party and Purchaser reasonably believes that the assumption of the defense or prosecution of all or a portion of such Claim is necessary to assure that its right or ability to enforce a material portion of its other Mortgage Loans or Servicing Rights or to assure that its method of doing business or its authority and approvals to service are not materially impaired, then, upon notice to Seller from Purchaser, Seller shall permit such assumption by Purchaser. Neither the Indemnifying Party nor the Indemnified Party shall be entitled to settle, compromise, decline to appeal, or otherwise dispose of any Claim, without the written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, such consent shall not be required for a Claim involving less than Ten Thousand Dollars ($10,000), unless the other Party reasonably believes that the settlement, compromise, declination to appeal or other disposition may (a) prejudice the Party in connection with other Claims or potential Claims, or (b) result in injunctive or other relief (excepting the payment of monetary damages) against the Party that could materially interfere with the business or operations of the Party. Following the full discharge of the Indemnifying Party’s obligations's obligations with respect to any Claim under Article 9, the Indemnified Party shall, subject to Applicable Requirements or other requirements of Xxxxxx XxxRequirements, assign to the Indemnifying Party any and all related claims Claims against third parties. Subject to Applicable Requirements, promptly Within fifteen (15) days after receipt, the Indemnified Party shall refund to the Indemnifying Party the amounts of all recoveries received by the Indemnified Party with respect to any claim with respect to which it was also is reimbursed for Losses. The obligations of the Indemnifying Party under this section 9.4(a) shall include Losses for Claims that are settled (with the Indemnifying Party's prior written consent) whether or not such settlement includes any acknowledgment or admission of fault, liability or breach by the Indemnifying Party. Subject to Applicable Requirements, following the receipt of written notice from the Indemnified Party of a demand for indemnification, the Indemnifying Party shall seek to cure the problem giving rise to the demand, if possible, and pay the amount for which it is liable, or otherwise take the actions which it is required to take within thirty (30) days or such other time as may be required by Xxxxxx Xxx, the Insurer or other third-party claimant. Subject to Applicable Requirements, as to any claim for indemnity for which notice is given as hereinbefore provided, the corresponding obligation of indemnity shall continue to survive until whichever of the following events first occurs: (i) the Indemnifying Party shall have discharged its obligation of indemnity to the Indemnified Party with respect to such claim, as required hereunder; (ii) a court of competent jurisdiction shall have finally determined that the Indemnifying Party is not liable to the Indemnified Party with respect to such claim; or (iii) the Indemnified Party shall have released in writing (or be held by a court of competent jurisdiction to have released) the Indemnifying Party from any liability with respect to such claim.
Appears in 2 contracts
Samples: Servicing Rights Purchase and Sale Agreement (Taylor Capital Group Inc), Servicing Rights Purchase and Sale Agreement (Taylor Capital Group Inc)
Notice and Settlement of Claims. Subservicer will be responsible for the management and administration of all loan level Actions relating to the Mortgage Loans, as set forth in the Servicing Agreement. Without limiting the applicability of any other notice provisions in this Agreement, Subservicer shall provide notice of any non-routine litigation or other indemnifiable matter involving Xxxxxx Xxx, an Asset or the Servicing Rights by sending an e-mail to [xxxxxxxxxxxxxxxxxxxxxxxxx_xxxxxxxxxx@xxxxxxxxx.xxx], or by such other means as may be reasonably requested by Xxxxxx Xxx, within ten (10a) days of its receipt or knowledge thereof. provided, that if it is necessary to answer or respond to any such claim or take any other action within a shorter timeframe in order reduce the likelihood of success of such claim or the Losses that may result, Subservicer shall provide earlier notice thereof, and Xxxxxx Xxx shall have no liability for any Losses resulting from a delay in delivery of such notice by Subservicer. Such notice shall include all available information relevant to the Action or claim, as well as to the question whether a third party (such as a Prior Servicer) should be notified of and/or assume control of responding to or defending the Claim, to the extent known by Subservicer. Xxxxxx Xxx shall have the right to assume some or all of the control or defense of any subservicing claim or Action, including by transfer of some or all of the control or defense of such subservicing claim to a Prior Servicer or other third party. In connection therewith, Subservicer shall make available such information and assistance as Xxxxxx Xxx or such Prior Servicer or other third party may reasonably request, including any witnesses, pertinent records, materials and information in Subservicer’s possession or under Subservicer’s control, at Fannie Mae’s, Prior Servicer’s or other third party’s expense. If Subservicer retains control over the defense of a subservicing claim or Action as permitted herein, Subservicer and Xxxxxx Xxx (and to the extent requested by Xxxxxx Xxx, the applicable Prior Servicer or other third party) shall confer in good faith, and Subservicer shall reasonably consider suggestions from Xxxxxx Xxx and its counsel regarding the control or defense of the subservicing claim or Action. The parties may jointly agree upon counsel reasonably acceptable to such parties to represent them to defend the subservicing claim, and when appropriate, shall enter into joint defense agreements for retaining joint counsel. Subservicer shall follow any directions from Xxxxxx Xxx to bill all or any portion of the Losses or any cost or expenses of the defense of such subservicing claim to a third party, provided that Xxxxxx Xxx shall remain liable for such amounts to the extent provided in this Agreement. Each Party to this Agreement shall promptly (but in all cases within ten (10) days and in accordance with Section 6.1(b)) notify the other Party in writing of the existence of any matter material fact known to it giving rise to any obligation obligations of the other Party under this Section 9.2 andArticle VI, in the case of including any Claim claim brought by a third party or the commencement of any Action which may give rise to any such obligationobligations (each, each a “Claim”); provided, however, that the Indemnified Party shall promptly only submit claims for indemnification for Losses that do not involve a Claim, only upon the earlier of: (but i) a monthly basis, or (ii) in all cases within ten aggregate amounts that equal or exceed $[***]. The failure or delay in providing notice shall not relieve a Party obligated to provide indemnification (10) days and in accordance with Section 6.1(b)) notify the other Party of the making of such Claim or the commencement of such action by a third party as and when same becomes known to it. Subject to Applicable Requirements and to Section 9.2(d), the indemnifying Party (the “Indemnifying Party”) of any obligation to indemnify or reimburse the other Party (“Indemnified Party”) hereunder unless such failure or delay materially prejudices the rights or increases the liability of the Indemnifying Party with respect to the matter as to which such notice relates, and then such Indemnifying Party’s obligation to indemnify or reimburse hereunder shall be reduced only by the amount that it actually has been damaged thereby. The Indemnifying Party may, at its own cost and expenseexpenses, assume and control the defense of any third-party claimClaim, including, without limitation, including the right to designate counsel and to control control, all negotiations, litigation, settlements, compromises and appeals of any such claim Claim or potential claimClaim; provided, however, provided that the such counsel is shall be reasonably satisfactory to the indemnified Indemnified Party (“Indemnified Party”) in the exercise of its reasonable discretion. Notwithstanding the foregoing, if the Purchaser is the Indemnified Party and the Purchaser reasonably believes that the assumption of the defense or prosecution of all or a portion of such Claim by the Purchaser is necessary to assure that its right or ability to enforce a material portion of its other Mortgage Loans or Servicing Rights or to assure that its method of doing business or its authority and approvals to service are not materially impaired, then, upon notice to the Seller from the Purchaser, the Seller shall permit such assumption by Purchaser. The Party not controlling the defense or prosecution of any such third-party claim Claim may participate at its own cost costs and expense. Neither the Indemnifying Party nor the Indemnified Party shall be entitled to settle, compromise, decline to appeal, or otherwise dispose of any Claim, without the written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Following the full discharge of the Indemnifying Party’s obligationsobligations with respect to any Claim under this Article VI, the Indemnified Party shall, subject to Applicable Requirements or other requirements of Xxxxxx XxxRequirements, assign to the Indemnifying Party any and all related claims Claims against third parties. Subject to Applicable Requirements, promptly Within 15 Business Days after receipt, the Indemnified Party shall refund to the Indemnifying Party the amounts of all recoveries received by the Indemnified Party with respect to any claim with respect to which it was also is reimbursed for Losses. The obligations of the Indemnifying Party under this Section 6.5 shall include Losses for Claims that are settled (with the Indemnifying Party’s prior written consent) whether or not such settlement includes any acknowledgment or admission of fault, liability or breach by the Indemnifying Party. Subject to Applicable Requirements, following the receipt of written notice from the Indemnified Party of a demand for indemnification, the Indemnifying Party shall seek to cure the problem giving rise to the demand, if possible, and pay the amount for which it is liable, or otherwise take the actions which it is required to take within thirty (30) days or such other time as may be required by Xxxxxx Xxx, the Insurer or other third-party claimant. Subject to Applicable Requirements, as to any claim for indemnity for which notice is given as hereinbefore provided, the corresponding obligation of indemnity shall continue to survive until whichever of the following events first occurs: (i) the Indemnifying Party shall have discharged its obligation of indemnity to the Indemnified Party with respect to such claim, as required hereunder; (ii) a court of competent jurisdiction shall have finally determined that the Indemnifying Party is not liable to the Indemnified Party with respect to such claim; or (iii) the Indemnified Party shall have released in writing (or be held by a court of competent jurisdiction to have released) the Indemnifying Party from any liability with respect to such claim.
Appears in 1 contract
Samples: Servicing Rights Purchase and Sale Agreement (HomeStreet, Inc.)
Notice and Settlement of Claims. Subservicer will be responsible for the management and administration of all loan level Actions relating to the Mortgage Loans, as set forth in the Servicing Agreement. Without limiting the applicability of any other notice provisions in this Agreement, Subservicer shall provide notice of any non-routine litigation or other indemnifiable matter involving Xxxxxx Xxx, an Asset or the Servicing Rights by sending an e-mail to [xxxxxxxxxxxxxxxxxxxxxxxxx_xxxxxxxxxx@xxxxxxxxx.xxx], or by such other means as may be reasonably requested by Xxxxxx Xxx, within ten (10a) days of its receipt or knowledge thereof. provided, that if it is necessary to answer or respond to any such claim or take any other action within a shorter timeframe in order reduce the likelihood of success of such claim or the Losses that may result, Subservicer shall provide earlier notice thereof, and Xxxxxx Xxx shall have no liability for any Losses resulting from a delay in delivery of such notice by Subservicer. Such notice shall include all available information relevant to the Action or claim, as well as to the question whether a third party (such as a Prior Servicer) should be notified of and/or assume control of responding to or defending the Claim, to the extent known by Subservicer. Xxxxxx Xxx shall have the right to assume some or all of the control or defense of any subservicing claim or Action, including by transfer of some or all of the control or defense of such subservicing claim to a Prior Servicer or other third party. In connection therewith, Subservicer shall make available such information and assistance as Xxxxxx Xxx or such Prior Servicer or other third party may reasonably request, including any witnesses, pertinent records, materials and information in Subservicer’s possession or under Subservicer’s control, at Fannie Mae’s, Prior Servicer’s or other third party’s expense. If Subservicer retains control over the defense of a subservicing claim or Action as permitted herein, Subservicer and Xxxxxx Xxx (and to the extent requested by Xxxxxx Xxx, the applicable Prior Servicer or other third party) shall confer in good faith, and Subservicer shall reasonably consider suggestions from Xxxxxx Xxx and its counsel regarding the control or defense of the subservicing claim or Action. The parties may jointly agree upon counsel reasonably acceptable to such parties to represent them to defend the subservicing claim, and when appropriate, shall enter into joint defense agreements for retaining joint counsel. Subservicer shall follow any directions from Xxxxxx Xxx to bill all or any portion of the Losses or any cost or expenses of the defense of such subservicing claim to a third party, provided that Xxxxxx Xxx shall remain liable for such amounts to the extent provided in this Agreement. Each Party to this Agreement shall promptly (but in all cases within ten (10) days and in accordance with Section 6.1(b)) notify the other Party in writing of the existence of any matter material fact known to it giving rise to any obligation obligations of the other any Party under this Section 9.2 Article X and, in the case of any Claim brought by a third party party, which may give rise to any such obligationobligations, and each Party shall promptly (but in all cases within ten (10) days and in accordance with Section 6.1(b)) notify the other Party of the making of such Claim or the commencement of such action by a third party as and when same becomes known to it. Subject The failure or delay in providing notice shall not relieve a Party obligated to Applicable Requirements and to Section 9.2(d), the indemnifying Party provide indemnification (the “Indemnifying Party”) of any obligation to indemnify or reimburse the other Party (“Indemnified Party”) hereunder unless such failure or delay materially prejudices the rights or increases the liability of the Indemnifying Party with respect to the matter as to which such notice relates, and then such Indemnifying Party’s obligation to indemnify or reimburse hereunder shall be reduced only by the amount that it actually has been damaged thereby. The Indemnifying Party may, at its own cost and expenseexpenses, assume and control the defense of any third-party claimClaim, including, without limitation, including the right to designate counsel and to control control, all negotiations, litigation, settlements, compromises and appeals of any such claim Claim or potential claimClaim; provided, however, provided that the such counsel is shall be reasonably satisfactory to the indemnified Indemnified Party (“Indemnified Party”) in the exercise of its reasonable discretion. Notwithstanding the foregoing, if Purchaser is the Indemnified Party and Purchaser reasonably believes that the assumption of the defense or prosecution of all or a portion of such Claim is necessary to assure that its right or ability to enforce a material portion of its other Mortgage Loans or Servicing Rights or to assure that its method of doing business or its authority and approvals to service are not materially impaired, then, upon notice to Seller from Purchaser, Seller shall permit such assumption by Purchaser. The Party not controlling the defense or prosecution of any such third-party claim Claim may participate at its own cost costs and expense. The Indemnifying Party shall not settle, compromise or consent to the entry of any judgment with respect to any Claim without the prior written consent of the Indemnified Party (such consent not to be unreasonably withheld, conditioned or delayed); provided, that, the Indemnifying Party may settle any such Claim without the Indemnified Party’s consent if such settlement (i) does not involve any finding or admission of any violation of applicable law or any violation of the rights of the Indemnified Party; (ii) does not involve any relief for monetary Losses that would be paid by the Indemnified Party; and (iii) releases the Indemnified Party in connection with such Claim. Following the full discharge of the Indemnifying Party’s obligationsobligations with respect to any Claim under this Article X, the Indemnified Party shall, subject to Applicable Requirements or other requirements of Xxxxxx XxxRequirements, assign to the Indemnifying Party any and all related claims Claims against third parties. Subject to Applicable Requirements, promptly Within thirty (30) days after receipt, the Indemnified Party shall refund to the Indemnifying Party the amounts of all recoveries received by the Indemnified Party with respect to any claim with respect to which it was also is reimbursed for Losses. The obligations of the Indemnifying Party under this Section 10.4(a) shall include Losses for Claims that are settled (with the Indemnifying Party’s prior written consent) whether or not such settlement includes any acknowledgment or admission of fault, liability or breach by the Indemnifying Party. Subject to Applicable Requirements, following the receipt of written notice from the Indemnified Party of a demand for indemnification, the Indemnifying Party shall seek to cure the problem giving rise to the demand, if possible, and pay the amount for which it is liable, or otherwise take the actions which it is required to take within thirty (30) days or such other time as may be required by Xxxxxx Xxx, the Insurer or other third-party claimant. Subject to Applicable Requirements, as to any claim for indemnity for which notice is given as hereinbefore provided, the corresponding obligation of indemnity shall continue to survive until whichever of the following events first occurs: (i) the Indemnifying Party shall have discharged its obligation of indemnity to the Indemnified Party with respect to such claim, as required hereunder; (ii) a court of competent jurisdiction shall have finally determined that the Indemnifying Party is not liable to the Indemnified Party with respect to such claim; or (iii) the Indemnified Party shall have released in writing (or be held by a court of competent jurisdiction to have released) the Indemnifying Party from any liability with respect to such claim.
Appears in 1 contract
Samples: Bulk Servicing Rights Purchase and Sale Agreement (Ocwen Financial Corp)
Notice and Settlement of Claims. Subservicer will be responsible for the management and administration of all loan level Actions relating to the Mortgage Loans, as set forth in the Servicing Agreement. Without limiting the applicability of any other notice provisions in this Agreement, Subservicer shall provide notice of any non-routine litigation or other indemnifiable matter involving Xxxxxx Xxx, an Asset or the Servicing Rights by sending an e-mail to [xxxxxxxxxxxxxxxxxxxxxxxxx_xxxxxxxxxx@xxxxxxxxx.xxx], or by such other means as may be reasonably requested by Xxxxxx Xxx, within ten (10) days of its receipt or knowledge thereof. provided, that if it is necessary to answer or respond to any such claim or take any other action within a shorter timeframe in order reduce the likelihood of success of such claim or the Losses that may result, Subservicer shall provide earlier notice thereof, and Xxxxxx Xxx shall have no liability for any Losses resulting from a delay in delivery of such notice by Subservicer. Such notice shall include all available information relevant to the Action or claim, as well as to the question whether a third party (such as a Prior Servicer) should be notified of and/or assume control of responding to or defending the Claim, to the extent known by Subservicer. Xxxxxx Xxx shall have the right to assume some or all of the control or defense of any subservicing claim or Action, including by transfer of some or all of the control or defense of such subservicing claim to a Prior Servicer or other third party. In connection therewith, Subservicer shall make available such information and assistance as Xxxxxx Xxx or such Prior Servicer or other third party may reasonably request, including any witnesses, pertinent records, materials and information in Subservicer’s possession or under Subservicer’s control, at Fannie Mae’s, Prior Servicer’s or other third party’s expense. If Subservicer retains control over the defense of a subservicing claim or Action as permitted herein, Subservicer and Xxxxxx Xxx (and to the extent requested by Xxxxxx Xxx, the applicable Prior Servicer or other third party) shall confer in good faith, and Subservicer shall reasonably consider suggestions from Xxxxxx Xxx and its counsel regarding the control or defense of the subservicing claim or Action. The parties may jointly agree upon counsel reasonably acceptable to such parties to represent them to defend the subservicing claim, and when appropriate, shall enter into joint defense agreements for retaining joint counsel. Subservicer shall follow any directions from Xxxxxx Xxx to bill all or any portion of the Losses or any cost or expenses of the defense of such subservicing claim to a third party, provided that Xxxxxx Xxx shall remain liable for such amounts to the extent provided in this Agreement. Each Party to this Agreement shall promptly promptly, but no later than thirty (but in all cases within ten (1030) days and in accordance with Section 6.1(b)) after it has knowledge thereof, notify the other Party in writing of the existence of any matter material fact known to it giving rise to any obligation obligations of the other another Party under this Section 9.2 andAgreement, in the case of including any Claim claim brought by a third party or the commencement of any Action which may give rise to any such obligationobligations (each, each a “Claim”) provided, however, that the Indemnified Party shall promptly (but in all cases within ten (10) days and in accordance with Section 6.1(b)) notify the other Party of the making of such Claim or the commencement of such action by a only submit claims for indemnification for Losses that do not involve third party as Claims, a maximum of once per calendar month and when same becomes known to ita minimum aggregate amount of $25,000. Subject to Applicable Requirements and to Section 9.2(d)For clarity, the indemnifying minimum aggregate amount of $25,000 shall not prevent the Indemnified Party from submitting Claims prior to the end of any applicable Survival Period. The failure or delay in providing notice shall not relieve a Party obligated to provide indemnification (the “Indemnifying Party”) of any obligation to indemnify or reimburse a Party entitled to indemnification (“Indemnified Party”) hereunder unless such failure or delay prejudices the rights of the Indemnifying Party and only to the extent of such prejudice. The Indemnifying Party may, at its own cost and expenseexpenses, assume and control the defense of any third-party claimClaim, including, without limitation, including the right to designate counsel and to control control, all negotiations, litigation, settlements, compromises and appeals of any such claim Claim or potential claim; provided, however, that the counsel is reasonably satisfactory to the indemnified Party (“Indemnified Party”) in the exercise of its reasonable discretionClaim. The Indemnified Party not controlling the defense or prosecution of any such third-party claim may participate at its own cost costs and expenseexpense in any such Claim. Neither the Indemnifying Party nor the Indemnified Party shall be entitled to settle, compromise, decline to appeal, or otherwise dispose of any Claim, without the written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Following the full discharge of the Indemnifying Party’s obligationsobligations with respect to any Claim under this Article VIII, the Indemnified Party shall, subject to Applicable Requirements or other requirements of Xxxxxx XxxRequirements, assign to the Indemnifying Party any and all related claims Claims against third parties. Subject With respect to Applicable Requirementsany Claim, promptly after receiptthe Parties agree to: (A) keep the other Party informed of the status of such Claim and any related proceedings at all stages thereof in a commercially reasonable manner, (B) to render (each at its own expense) to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of such Claim, and (C) to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all confidential information and the attorney-client and work-product privileges. In connection therewith, each Party agrees that: (1) it will use its reasonable best efforts, in respect of any Claim in which it has participated in the defense, to avoid production of confidential information (consistent with applicable law and rules of procedure), and (2) all communications between any Party hereto and counsel responsible for or participating in the defense of any Claim shall, to the extent possible, be made so as to preserve any applicable attorney-client or work-product privilege. If the Indemnifying Party notifies the Indemnified Party shall refund to that the Indemnifying Party disputes the amounts of all recoveries received by the Indemnified Party with respect to any claim with respect to which it was also reimbursed for Losses by the Indemnifying Party. Subject to Applicable Requirements, following the receipt of written notice from the Indemnified Party of a demand for indemnificationdescribed in such notice, the Indemnifying Party shall seek to cure the problem giving rise to the demand, if possible, and pay the amount for which it is liable, or otherwise take the actions which it is required to take within thirty (30) days or such other time as may be required by Xxxxxx Xxx, the Insurer or other third-party claimant. Subject to Applicable Requirements, as to any claim for indemnity for which notice is given as hereinbefore provided, the corresponding obligation of indemnity shall continue to survive until whichever of the following events first occurs: (i) the Indemnifying Party shall have discharged its obligation of indemnity to the Indemnified Party with respect will proceed in good faith to negotiate a resolution of such claim, as required hereunder; dispute for a period of at least forty-five (ii45) a court of competent jurisdiction shall have finally determined that the Indemnifying Party is not liable to the Indemnified Party with respect to such claim; or (iii) the Indemnified Party shall have released in writing (or be held by a court of competent jurisdiction to have released) the Indemnifying Party from any liability with respect to such claimdays.
Appears in 1 contract
Samples: Mr. Cooper Group Inc.
