Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 9 contracts

Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Second Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with ~~the~~ any Assisted Securitization and may also be included in filings with the ~~Securities and Exchange Commission~~ SEC pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to ~~the~~ any Assisted Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with ~~the holder of the Note~~ each Initial Lender in updating the Disclosure Document in connection with an Assisted Securitization by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower agrees to provide, in connection with ~~the~~ any Assisted Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, if applicable and without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and/or such sections in Disclosure Documents under different headings and containing information provided by the Borrower relating to the Properties, Collateral, Senior Mezzanine Collateral, Mortgage Borrower, Senior Mezzanine Borrower, Borrower, Principal, Holdings, the Operating Company, the Mortgage Loan, Senior Mezzanine Loan and the Loan and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, Principal, Holdings, the Collateral, the Senior Mezzanine Collateral and/or Operating Company, the Mortgage Loan and the Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying the applicable Initial Lender, ~~each Noteholder, JPM (whether or not it is the Lender),~~ and any Affiliate of ~~JPM or a Noteholder~~ such Initial Lender that has filed any registration statement relating to ~~the~~ an Assisted Securitization or has acted as the sponsor or depositor in connection with ~~the~~ an Assisted Securitization, any Affiliate of ~~JPM or a Noteholder~~ the applicable Initial Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Assisted Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Assisted Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject (whether or not arising from any third party claim) insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to the applicable Initial Lender or ~~such Noteholder~~ the Noteholders by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Initial Lender in writing and Initial Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section ~~9.2~~ 9.10 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section ~~9.2~~9.10. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section ~~9.2~~ 9.10 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section ~~9.2~~9.10), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section ~~9.2~~9.10, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 9.10 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~9.10. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section ~~9.2~~ 9.10 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt~~. (i)~~ . Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 8 contracts

Samples: Fourth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Fifth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the ~~“Securities Act”~~"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the ~~“Exchange Act”~~"EXCHANGE ACT"), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. ~~In the event that the~~ Lender shall provide Borrower adequate opportunity to review any such Disclosure Document ~~is required~~ and to ~~be revised prior~~ provide any such comment to ~~the sale of all Securities,~~ Lender as Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessiondeems necessary. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such ~~sections and such other information in the~~ Disclosure Documents ~~(to the extent~~ specified by Lender and that each such ~~information~~ Disclosure Document, as it relates to ~~or includes any Provided Information or any information regarding~~ Borrower, Borrower Affiliates, the Properties, ~~Borrower~~the Property Manager and all other aspects of the Loan, ~~Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do~~ does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~(and for purposes of this SECTION 12.3, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of ~~Section~~ SECTION 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”~~"LENDER GROUP"), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the ~~“Liabilities”)~~"LIABILITIES") to which ~~any such Indemnified Person~~ Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the ~~Covered~~ omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clause (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Information~~ Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, appraisals, market studies, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. (c) In connection with Exchange Act filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (~~iii~~ii) ~~agreeing to~~ reimburse ~~each Indemnified Person~~ Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred, in connection with investigating or defending~~ the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting~~ Group or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question (which consent shall not~~ this Section is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether or not any Indemnified Person is an actual or potential~~ indemnifiable under this Section, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party who is not also found liable for such fraudulent misrepresentation,~~ Person (i) Lender's and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Lender and Borrower ~~agrees~~ hereby agree that ~~in no event shall the amount to~~ it would not be ~~contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ equitable if the amount of ~~the fees (~~such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this ~~Section 9.2~~ SECTION 12.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 5 contracts

Samples: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities ~~and~~ Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, ~~including,~~ including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, ~~Mortgage Borrower,~~ Manager and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ BSCMI (whether or not it is the Lender), any Affiliate of ~~JPM or a Noteholder~~ BSCMI that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ BSCMI that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (~~iii~~C) above shall be ~~effective~~ effective, valid and binding obligations of the Indemnifying Persons whether or not an indemnification agreement described in clause (iA) above is provided. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior written consent of ~~the Indemnified Person in question~~ BSCMI (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ BSCMI reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Indemnified Persons in connection with the closing of the ~~Loan or the Securitization~~Loan. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 5 contracts

Samples: Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust), Loan Agreement (Acadia Realty Trust)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” ”, “Special Considerations,” ”, “Description of the Collateral,” ”, “Description of the Mezzanine Loans,” ”, “The Operating Company,” ”, “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” ”, and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 4 contracts

Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Second Mezzanine Loan Agreement (Harrahs Entertainment Inc)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (the entering into of which shall be at no cost to Borrower) (A) certifying that Borrower has ~~carefully~~ examined those portions of such Disclosure Documents specified by Lender for Borrower’s review pertaining to Borrower, Borrower’s Affiliates, Manager or the Loan and that each such Disclosure ~~Documents~~Document, ~~including, without limitation, the~~ as it relates to sections ~~entitled “Risk Factors,” “Special Considerations,” “Description~~ of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents specified with reasonable specificity by Lender relating to Borrower, Borrower’s Affiliates, the Property, Manager and any material aspects of the Loan, does not (except to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively specified by Borrower if Borrower does not agree with the ~~Provided Information, the “Covered Disclosure Information”~~statements therein) ~~do not~~ contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lender Group”), and Lender, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages,~~ damages or liabilities, ~~costs or expenses (including, without limitation, legal~~ including reasonable attorneys’ fees and ~~expenses for enforcement~~ disbursements, other than those arising out of ~~these obligations~~ the gross negligence, willful misconduct or bad faith of any of the foregoing proposed indemnitees (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement ~~or alleged untrue statement~~ of any material fact contained in ~~the Covered Disclosure Information~~ such sections or arise out of or are based upon the omission ~~or alleged omission~~ to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information~~such sections, in light of the circumstances under which they were made, not misleading (except that (x) Borrower’s obligation to indemnify in respect of any information contained in such sections that is derived in part from information provided by Borrower and in part from information provided by others unrelated to or not employed by Borrower shall be limited to any untrue statement or omission of material fact therein known to Borrower that results from an error in any information provided (or which should have been provided) by Borrower which Borrower has been given the opportunity to examine and reasonably and promptly approve (Borrower hereby confirms that it has reviewed and approved each of the appraisals, engineering, environmental and asbestos reports prepared by third parties in connection with the Loan) and (~~iii~~y) Borrower shall have no responsibility for the failure of any member of the Underwriting Group to accurately transcribe written information supplied by Borrower or the refusal of any member of the Underwriting Group to include any written information supplied by Borrower after an explicit direction from Borrower to do so) and (C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred,~~ the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities to the extent that such legal or other expenses are incurred in connection with matters for which Borrower has agreed to indemnify the Underwriter Group herein; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ loss, claim, damage or liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Documents~~ Document or in connection with the underwriting or ~~the~~ closing of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Borrower, operating statements and ~~rent rolls~~ major customer lists with respect to the ~~Properties),~~ Property and not subsequently retracted or modified in ~~no event shall Borrower be liable for Liabilities arising from information contained~~ whole or in ~~a Disclosure Document that was not provided~~ part so as to ~~Borrower for comment at least five (5) Business Days~~ eliminate the misstatement or omission in question prior to ~~its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)~~any Securitization. This indemnity agreement will be in addition to any liability which Borrower may otherwise have~~. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided~~. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 4 contracts

Samples: Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust)

Securitization Indemnification. (a) Borrower ~~understands~~ and Borrower Principal understand that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower ~~agrees~~ and Borrower Principal agree to ~~provide,~~ provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Securitization~~Property and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, which are delivered to Borrower and Borrower Principal for review, an indemnification ~~agreement~~ certificate (iA) certifying that (AI) Borrower ~~has~~ and Borrower Principal have carefully examined such memorandum or prospectus or other document actually delivered by or on behalf of Lender (including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Disclosure Documents~~Property and/or the Loan), ~~including~~as applicable, including without limitation, the sections entitled “~~Risk Factors,” “~~Special Considerations,” and/or “~~Description of the Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” or similar sections, and all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and any other sections reasonably requested by Lender (all such sections, collectively, the “Disclosed Materials”), and (BII) ~~such sections and such other information in the Disclosure Documents (~~to the ~~extent such information relates to or includes any Provided Information or any information regarding the Properties,~~ best of Borrower~~, Mortgage~~ ’s knowledge except as specifically identified by Borrower, the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”)~~ Disclosed Materials do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 13.5, ~~each Noteholder, JPM (whether or not it is~~ Lender hereunder shall include its officers and directors) and the ~~Lender), any~~ Affiliate of ~~JPM or a Noteholder~~ Lender that (i) has filed ~~any~~ the registration ~~statement~~ statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or ~~has acted as the sponsor or depositor in connection with the Securitization~~(ii), ~~any Affiliate of JPM or a Noteholder that acts as~~ an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of ~~their respective officers~~any Issuer Person, ~~directors, partners, employees, representatives, agents and Affiliates~~ and each Person or entity who controls any ~~such~~ Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Issuer Group”), ~~for~~ and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any ~~losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees~~ such Person within the meaning of Section 15 of the Securities Act and ~~expenses for enforcement~~ Section 20 of ~~these obligations~~ the Exchange Act (collectively, the “~~Liabilities~~Underwriter Group”)) for any Losses to which ~~any such Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group may become subject insofar as the ~~Liabilities~~ Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information~~ Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon the Disclosed Materials or any reports delivered by or on behalf of Borrower or Borrower Principal in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and, if Borrower or Borrower Principal do not provide the indemnification certificate, shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates. (c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 13.5 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 13.5, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 13.5 the ~~defense of such claim or action, Borrower~~ indemnifying party shall ~~not~~ be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreements provided for in ~~question (which consent shall not~~ Section 13.5(c) or Section 13.5(d) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether~~ indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower, Borrower Principal and ~~Borrower~~ Lender under this Section ~~9.2~~ 13.5 shall survive the ~~termination~~ satisfaction of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 4 contracts

Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)

Securitization Indemnification. (ai) Borrower ~~understands that certain of the Provided Information may be included in Disclosure Documents~~ and each Guarantor agree to provide in connection with ~~the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933~~each Disclosure Document, an indemnification certificate, as ~~amended (the “Securities Act”~~set forth in Section 10.02(d)(ii), ~~or the Securities and Exchange Act of 1934~~indemnifying Lender, ~~as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities~~any Issuer Person, the ~~Rating Agencies~~Issuer Group and/or the Underwriter Group (as those terms are defined in Section 10.02(d)(vii)) (each, an “Indemnified Party,” and ~~service providers relating~~ collectively “Indemnified Parties”) for any losses to which any Indemnified Party may become subject under the ~~Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note~~ conditions set forth in ~~updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession~~this Section. (bii) ~~Borrower agrees to provide, in connection with the Securitization, an~~ The indemnification ~~agreement (i) certifying that~~ certificate will provide that (A) Borrower ~~has~~ and each Guarantor have carefully examined those sections of the Disclosure ~~Documents~~Documents relating to the following: (1) Borrower, ~~including~~any SPE Equity Owner, ~~without limitation~~any Guarantor, any Property Manager, their respective Affiliates, the Loan and the Mortgaged Property (“Borrower Information”). (2) The sections entitled ~~“Risk Factors,”~~ “Special Considerations,” and/or “~~Description of the Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” ~~and (B) such~~ or similar sections ~~and such other information in the Disclosure Documents (~~but only to the extent such ~~information relates~~ sections specifically refer to ~~or includes any Provided~~ Borrower Information ~~or any information regarding~~ (“Borrower Information Sections”). (B) To the ~~Properties,~~ best of Borrower~~, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively~~ ’s and each Guarantor’s knowledge with ~~the Provided~~ regard to Borrower Information, the ~~“Covered Disclosure Information”)~~ Borrower Information Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading~~, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is~~ . Notwithstanding the ~~Lender)~~foregoing, any ~~Affiliate~~ indemnification certificate may expressly exclude any information contained in third party reports prepared by parties that are not Affiliates of ~~JPM~~ Borrower or ~~a Noteholder that has filed~~ of any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Guarantor (~~collectively, the~~ “~~Indemnified Persons~~Third Party Information”), and the obligations and liability of Borrower and any Guarantor pursuant to this Section will not extend to the Third Party Information. (iii) Borrower’s and each Guarantor’s agreement to indemnify the Indemnified Parties for any ~~losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”))~~ losses to which any ~~such~~ Indemnified ~~Person~~ Party may become subject ~~insofar as the Liabilities~~ will extend only to such losses that arise out of or are based upon any untrue statement ~~or alleged untrue statement~~ of any material fact contained in the ~~Covered~~ Borrower Information or the Borrower Information Sections of the Disclosure ~~Information~~ Documents or arise out of or are based upon the omission ~~or alleged omission~~ to state in the ~~Covered~~ Borrower Information or the Borrower Information Sections of the Disclosure ~~Information~~ Documents a material fact required to be stated ~~therein or~~ in such sections necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading (collectively, “Securities Liabilities”). (iv) Borrower and ~~(iii) agreeing~~ each Guarantor agrees to reimburse ~~each~~ any Indemnified ~~Person~~ Party for any legal or other expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Party in ~~connection with~~ investigating or defending the ~~Liabilities provided~~Securities Liabilities. (v) The indemnitors will be liable under Section 10.02(d) (ii), ~~however, that Borrower shall have liability with respect to Liabilities arising out of~~ (iii) or ~~based upon the Covered Disclosure Information~~ (iv) only to the extent that such Securities Liabilities arise out of of, or are based ~~upon~~ upon, any such untrue statement or omission made in the ~~Covered~~ Disclosure ~~Information~~ Documents in reliance ~~upon~~ upon, and in conformity ~~with information~~ with, Borrower Information furnished to ~~Lender or such Noteholder~~ any Indemnified Party by or on behalf of Borrower or a Guarantor in connection with the preparation of the Disclosure Documents or in connection with the underwriting ~~or the closing~~ of the ~~Loan (~~Loan, including ~~without limitation~~ financial statements of ~~Borrower~~ Borrower, any SPE Equity Owner or any Guarantor, and operating statements and rent rolls with respect to the ~~Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five~~ Mortgaged Property. (5vi) ~~Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate).~~ This indemnity ~~agreement will be~~ is in addition to any liability which Borrower may otherwise ~~have. Moreover, the indemnification provided for in clauses (ii)~~ have and ~~(iii) above shall~~ will be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause (i~~this Section 10.02(d) ~~above~~ is provided and will be applicable based on information previously provided by or on behalf of Borrower or a Guarantor if the indemnification certificate is not provided. (cvii) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions For purposes of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.10.02(d):

Appears in 3 contracts

Samples: Multifamily Loan and Security Agreement (Steadfast Income REIT, Inc.), Multifamily Loan and Security Agreement (KBS Legacy Partners Apartment REIT, Inc.), Multifamily Loan and Security Agreement (KBS Legacy Partners Apartment REIT, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower has carefully examined ~~the Disclosure Documents~~such memorandum or prospectus, ~~including~~as applicable, including without limitation, the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and ~~(B)~~ such sections (and ~~such~~ any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, Lender hereunder shall include its officers and directors), each ~~Noteholder~~of its directors, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers, directors, partners, employees, representatives, agents and Affiliates~~ its officers who have signed the Registration Statement and each Person or entity who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lender Group”), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively~~liabilities to which Lender, the ~~“Liabilities”)) to which any such Indemnified Person~~ Lender Group or the Underwriter Group may become subject insofar as ~~the Liabilities~~ such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in ~~the Covered Disclosure Information~~ such sections or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading (collectively, the “Liabilities”) and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Lender Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender in connection with ~~investigating or~~ defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ loss claim, damage or liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ debt, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in ~~clauses~~ Clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower agrees to indemnify (i) Lender, the ~~Indemnified Persons~~ Lender Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Lender Group or the Underwriter Group in connection with defending ~~or investigating~~ the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall not be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense ~~thereof except as provided in the following sentence~~thereof; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall promptly notify the indemnifying party in writing, and shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreements provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Lender’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 3 contracts

Samples: Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl)

Securitization Indemnification. (a) Extended Stay and Borrower ~~understands~~ understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the ~~Securities and~~ Exchange Act ~~of 1934, as amended (the “Exchange Act”),~~ or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Extended Stay will cooperate with the holder of the Note in updating the Covered Disclosure ~~Document~~ Information by providing all current information necessary to keep the Covered Disclosure ~~Document~~ Information accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) ~~Borrower has~~ the Indemnifying Persons have carefully examined the structural and collateral term sheet and those sections of the Disclosure ~~Documents, including, without limitation, the sections~~ Documents entitled “Risk Factors,” ”, “Special Considerations,” ”, “Description of the Mortgage Loan and the Properties”, “Description of Collateral,” ”, “Description of the Mezzanine Loans,” ”, “The ~~Operating Company,~~Manager” and “The Borrower” ~~and “Certain Legal Aspects of the Mezzanine Loans,” and~~ (~~B) such sections and such other information in the Disclosure Documents (~~solely to the extent such ~~information relates~~ sections relate to or ~~includes~~ include any Provided Information or any information regarding the Properties, Borrower, Other Mezzanine Borrower, Mortgage Borrower, ~~the Collateral~~any Mortgage Loan Party, the ~~Senior~~ Loan, the Mortgage Loan and/or the Other Mezzanine ~~Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (ii) the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying ~~Lender, each Noteholder, JPM (whether or not it is~~ the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified ~~Persons”),~~ Persons for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which ~~Borrower~~ the Indemnifying Persons may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification agreement described in clause (iA) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to ~~indemnify~~ (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it such Indemnifying Person may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it such Indemnifying Person may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel and local counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior written consent of ~~the Indemnified Person in question~~ Lender or its designee (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceedings and does not include a statement as to, or admission of, fault, culpability or a failure to act by or on behalf of any Indemnified Person. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization. (j) Borrower shall jointly and severally indemnify the Lenders and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates against any Liabilities to which any such Lender, each of their respective officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Liabilities arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of the Borrowers to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading.

Appears in 3 contracts

Samples: Mezzanine Loan Agreement (ESH Hospitality LLC), Mezzanine Loan Agreement (ESH Hospitality LLC), Mezzanine Loan Agreement (ESH Hospitality LLC)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information and the Required Records may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including a prospectus or private placement memorandum (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, upon request from the holder of the Note, Borrower will cooperate with the holder of the Note in updating the Provided Information or Required Reports for inclusion or summary in the Disclosure Document by providing all current information pertaining to Borrower and the Properties necessary to keep the Disclosure Document accurate and complete in all material respects with respect to ~~the extent in Borrower’s possession~~such matters. (b) In connection with each of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, Borrower agrees to ~~provide, in connection with the Securitization,~~ provide an indemnification ~~agreement~~ certificate: (iA) certifying that ~~(A)~~ Borrower has carefully examined those portions of such memorandum or prospectus, as applicable, pertaining to Borrower, the ~~Disclosure Documents, including, without limitation,~~ Property and the Loan including applicable portions of the sections entitled ~~“Risk Factors,” “~~"Special Considerations~~,” “~~", "Description of the ~~Collateral,” “~~Mortgage", "Description of the ~~Mezzanine Loans,” “~~Mortgage Loan and Property", "The ~~Operating Company,” “~~Manager", "The Borrower” " and “"Certain Legal Aspects of the ~~Mezzanine Loans,”~~ Mortgage Loan", and ~~(B)~~ such sections (and ~~such~~ any other ~~information in the Disclosure Documents (~~sections reasonably requested and pertaining to ~~the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage~~ Borrower, the ~~Collateral,~~ Property or the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”~~Loan) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.;

Appears in 2 contracts

Samples: Loan Agreement (Banyan Strategic Realty Trust), Loan Agreement (Banyan Strategic Realty Trust)

Appears in 2 contracts

Samples: Loan Agreement (Glimcher Realty Trust), Loan Agreement (Glimcher Realty Trust)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower or its agents, counsel and representatives may be included in Disclosure Documents in connection with ~~the~~ a Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the ~~Rating Agencies,~~ NRSROs and other advisory and service providers relating to ~~the~~ a Securitization. In the event that ~~the~~ any Disclosure Document is required to be revised prior to the sale of all ~~Securities~~Securities in connection with a Securitization, Borrower will cooperate with Lender (or, if applicable, the holder of the ~~Note~~ applicable interest in the Loan) in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower hereby agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying indemnify Lender, ~~each Noteholder, JPM (whether or not it is the Lender)~~UBSRESI, any Affiliate of ~~JPM or a Noteholder~~ UBSRESI that has filed any registration statement relating to the Securitization or has acted as the issuer, the sponsor or depositor in connection with ~~the~~ a Securitization, any Affiliate of ~~JPM or a Noteholder~~ UBSRESI that acts as an underwriter, placement agent or initial purchaser of the Securities issued in ~~the~~ connection with a Securitization, any other ~~co-~~issuers, depositors, underwriters, ~~co-~~placement agents or ~~co-~~initial purchasers of the Securities issued in ~~the~~ connection with a Securitization, and each of their respective directors, officers~~, directors~~, partners, employees, representatives, agents and ~~Affiliates~~ Affiliates, and each Person ~~or entity who~~ that controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Securitization Indemnified ~~Persons~~Parties”), ) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, ~~damages, liabilities,~~ costs ~~or expenses (including, without limitation, legal fees~~ and expenses ~~for enforcement of these obligations~~ (collectively, the “Securitization Indemnification Liabilities”)) to which any ~~such~~ Securitization Indemnified ~~Person~~ Party may become subject insofar as the Securitization Indemnification Liabilities arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information~~ information provided to Lender by Borrower, any Affiliate of Borrower or ~~arise out~~ any of their respective agents, counsel or ~~are based upon~~ representatives, (ii) the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such information or necessary in order to make the statements in ~~the Covered Disclosure Information~~such information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (iii) ~~agreeing~~ a breach of the representations and warranties made by Borrower in Section 3.1.34 of this Agreement. Borrower also agrees to reimburse each Securitization Indemnified ~~Person~~ Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified ~~Person, as they are incurred,~~ Party in connection with investigating or defending the ~~Liabilities provided~~Securitization Indemnification Liabilities. Borrower’s liability under this paragraph will be limited to any such liability, ~~however~~obligation, loss, damage, penalty, action, judgment, suit, claim, cost or expense that ~~Borrower shall have liability with respect to Liabilities arising~~ arises out of or is based upon ~~the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such~~ an untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished ~~to Lender or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or ~~the~~ closing of the Loan (~~including~~ including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurateProperty). This indemnity ~~agreement~~ provision will be in addition to any obligation or liability which Borrower may otherwise have~~. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided~~. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings and information therein or other reports containing comparable information that are required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, as it relates to the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager or any other aspect of the Loan, Borrower agrees to ~~indemnify~~ (i) indemnify the Securitization Indemnified ~~Persons~~ Parties for Securitization Indemnification Liabilities to which any ~~such~~ Securitization Indemnified ~~Person~~ Party may become subject insofar as the Securitization Indemnification Liabilities arise out of of, or are based ~~upon any~~ upon, an untrue statement or ~~alleged untrue statement~~ omission made in reliance upon, and in conformity with, information furnished to Lender by or on behalf of ~~any material fact~~ Borrower in connection with the ~~Covered~~ preparation of the Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in ~~light~~ connection with the underwriting or closing of the ~~circumstances under which they were made~~Loan or any of the reports, ~~not misleading~~ statements or other information furnished by or on behalf of Borrower pursuant to the terms of this Agreement, including financial statements of Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse each Securitization Indemnified ~~Person~~ Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified ~~Persons, as they are incurred,~~ Party in connection with defending or investigating the Securitization Indemnification Liabilities. (d) Promptly after receipt by an a Securitization Indemnified ~~Person~~ Party of notice of any claim or the commencement of any ~~action~~action or suit, ~~the~~ such Securitization Indemnified ~~Person~~ Party shall, if a claim for indemnification in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of ~~that action~~such action or suit; provided, however, that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have to an any Securitization Indemnified ~~Person~~ Party otherwise than under the provisions of this Section 9.2. If any such ~~claim~~ claim, action or ~~action~~ suit shall be brought against an any Securitization Indemnified ~~Person~~Party, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to ~~the~~ such Securitization Indemnified ~~Person~~Party. After notice from ~~any~~ Borrower to an the applicable Securitization Indemnified ~~Person~~ Party of ~~its~~ Borrower’s election to assume the defense of such ~~claim~~ claim, action or ~~action~~suit, Borrower shall not be liable to ~~the~~ such Securitization Indemnified ~~Person~~ Party for any legal or other costs and expenses subsequently incurred by ~~the~~ such Securitization Indemnified ~~Person~~ Party in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action or suit include both Borrower, on the one hand, and one or more Securitization Indemnified ~~Persons~~ Parties on the other hand, and an a Securitization Indemnified ~~Person~~ Party shall have reasonably concluded that there are ~~any~~ legal defenses available to it and/or other Securitization Indemnified ~~Persons~~ Parties that are different or in addition to those available to Borrower, the Securitization Indemnified ~~Person~~ Party or ~~Persons~~ Parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action or suit on behalf of such Securitization Indemnified ~~Person~~ Party or ~~Persons~~Parties. The Securitization Indemnified ~~Person~~ Party shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Securitization Indemnified ~~Person~~ Party is seeking or intends to seek reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are related solely ~~related~~ to the defense of a claim for which Borrower is required hereunder to indemnify such Securitization Indemnified ~~Person~~Party. Borrower shall not be liable for the costs and expenses of more than one (1) such separate counsel unless ~~such~~ a Securitization Indemnified ~~Person~~ Party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Securitization Indemnified ~~Person~~Party. (e) Without the prior written consent of the applicable Securitization Indemnified ~~Person in question~~ Party (which consent shall not be unreasonably ~~withheld~~withheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Securitization Indemnified ~~Person~~ Party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given ~~such~~ the applicable Securitization Indemnified ~~Person~~ Party reasonable prior notice thereof and shall have obtained an unconditional release of each Securitization Indemnified ~~Person hereunder~~ Party from all ~~liability~~ Securitization Indemnification Liabilities arising out of or relating to such claim, action, suit or ~~proceedings~~proceeding. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Securitization Indemnified ~~Person~~ Party without the consent of Borrower (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Securitization Indemnified ~~Person~~ Party harmless (with respect only to the Securitization Indemnification Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Securitization Indemnified ~~Person~~Party, on the other hand, shall contribute to the Securitization Indemnification Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Securitization Indemnified ~~Person~~Party, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) above but also the relative faults of Borrower, on the one hand, and all Securitization Indemnified ~~Persons~~Parties, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no ~~party~~ Person found liable for a fraudulent misrepresentation shall be entitled to contribution from any other ~~party~~ Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Securitization Indemnified ~~Persons~~ Parties collectively pursuant to this ~~paragraph~~ Section 9.2(f) exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Securitization Indemnified ~~Persons~~ Parties in connection with the closing of the ~~Loan or the Securitization~~Loan. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Securitization Indemnified ~~Person~~ Party is a formal party to any ~~lawsuits~~claim, ~~claims~~ action, suit or ~~other proceedings~~proceeding. Borrower further agrees that the Securitization Indemnified ~~Persons~~ Parties are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of Borrower and the Securitization Indemnified ~~Persons and Borrower~~ Parties under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Consolidated Tomoka Land Co), Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization ~~and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”),~~ or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine ~~Loans~~Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the ~~Properties, Borrower, Mortgage Borrower, the~~ Collateral, the Senior Mezzanine ~~Collateral~~ Collateral, the Properties, Borrower, Senior Mezzanine Borrower, Baltimore Owner, Guarantor, Mortgage Principal, Mortgage Borrower, Manager, the Loan, any other Mezzanine Loan and/or ~~Operating Company~~the Mortgage Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not (and with respect to any portion of the Disclosure Documents prepared in reliance on the reports of third parties, to the best of their knowledge do not) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender~~, each Noteholder, JPM (whether or not it is the Lender)~~, any Affiliate of ~~JPM or a Noteholder~~ Lender that ~~has filed any registration statement relating to the Securitization or~~ has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as ~~an underwriter,~~ a placement agent or initial purchaser of Securities issued in the Securitization, any other ~~co-underwriters,~~ co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading ~~and~~ (~~iii) agreeing~~ other than a statement or omission based upon the reports of third parties that do not to ~~reimburse each~~ the Indemnified ~~Person for~~ Persons knowledge contain any ~~legal~~ untrue statement or ~~other expenses incurred by such Indemnified Person, as they are incurred~~omission of a material fact necessary in order to make the statements made, in ~~connection with investigating or defending~~ light of the ~~Liabilities~~ circumstances under which they were made, not misleading) provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information~~ Indemnified Persons will be liable in any case above but only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ thereon in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower and its Affiliates in connection with the preparation of the Disclosure Documents or in connection with the ~~underwriting or the closing of the Loan (including~~ Securitization, including, without ~~limitation~~ limitation, financial statements of Borrower or its Affiliates, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the ~~Properties)~~Properties (other than third party reports which to the Borrower’s knowledge do not contain any untrue statement or omission of a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading) but excluding any projections made in good faith by Borrower or its Affiliates; and provided that this Section shall not apply to any Liabilities to the extent arising out of any untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission made in reliance upon and in ~~no event~~ connection with the written information furnished to Borrower or its Affiliates by Lender or any Indemnified Person expressly for use in the Disclosure Documents unless Borrower or Guarantor fails to correct any such untrue statement, misstatement or omission with respect to Borrower, Guarantor or their Affiliates that is known to Borrower or Guarantor or that, with the exercise of customary reasonable efforts, should be known to Borrower or Guarantor and (iii) agreeing to reimburse each Indemnified Person for any legal or other out-of-pocket expenses reasonably incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, Disclosure Documents shall not inure to the benefit of any Indemnified Person if Borrower ~~be liable for Liabilities arising~~ or its Affiliates shall sustain the burden of proving that any such loss, liability, claim, damager or expense resulted from ~~information contained in~~ the fact that a ~~Disclosure Document that~~ Person was not provided ~~to Borrower for comment~~ with a copy of the final Disclosure Documents at ~~least five (5) Business Days~~ or prior to ~~its dissemination~~ the written confirmation of the sale of such securities to such Person and the loss, liability, claim, damage or ~~on which Borrower provided comments to Lender~~ expense resulted from an untrue statement or misstatement contained in, or omission from, the preliminary Disclosure Documents that were corrected in ~~writing and Lender failed to incorporate such comments (assuming such comments were accurate)~~the final Disclosure Documents. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Mezzanine Loan Agreement (Wyndham International Inc), Mezzanine Loan Agreement (Wyndham International Inc)

Securitization Indemnification. (a) Borrower understands that ~~certain~~ information provided to Agent by Borrower and its agents, counsel and representatives relating to Borrower, Guarantor, their respective constituent owners, and the Properties (such information, whether provided pursuant to Section 9.1 above or otherwise in connection with the Loan, collectively, the “Borrower Provided Information”; which “Borrower Provided Information” shall be deemed not to include (i) an untrue statement of any material fact contained in the Borrower Provided Third Party Report, except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Third Party Report that the Borrower Provided Third Party Report contained such untrue statement of material fact and Borrower failed to alert Agent to same, or (ii) an omission of a material fact in the Borrower Provided Third Party Report (which omission shall be deemed material if such fact should have been included in the Borrower Provided Third Party Report in order to make the statements, in light of the circumstances under which they were made, not misleading), except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided ~~Information~~ Third Party Report that the Borrower Provided Third Party Report reflected such omission and Borrower failed to alert Agent to same) may be included in ~~Disclosure Documents~~ preliminary and final disclosure documents in connection with ~~the Securitization~~ any Secondary Market Transaction, including a Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, ~~the Rating Agencies~~investment banking firms, NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to ~~the~~ any Secondary Market Transaction, including a Securitization. ~~In the event~~ Borrower also understands that the ~~Disclosure Document is required to~~ findings and conclusions of any third-party due diligence report obtained by the Agent, the Issuer or the Securitization placement agent or underwriter may be ~~revised prior to~~ made publicly available if required, and in the ~~sale of all Securities~~manner prescribed, ~~Borrower will cooperate with the holder~~ by Section 15E(s)(4)(A) of the ~~Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate~~ Exchange Act and ~~complete in all material respects to the extent in Borrower’s possession~~any rules promulgated thereunder. (b) Borrower hereby agrees to ~~provide~~indemnify Agent (and for purposes of this Section 9.2, ~~in connection with~~ Agent shall include the ~~Securitization~~initial agent, ~~an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents~~initial lenders, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” their successors and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitizationassigns, and ~~each of~~ their respective ~~officers,~~ officers and directors~~, partners, employees, representatives, agents and Affiliates~~ ) and each Person ~~or entity~~ who controls ~~any such Person~~ the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Agent, Lenders, the Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based ~~upon~~ upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information or arise out of or are based upon~~ Borrower Provided Information, (B) the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in the Borrower Provided Information or necessary in order to make the statements in the ~~Covered Disclosure~~ Borrower Provided Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, or (C) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this Agreement (Full and Accurate Disclosure); except, in each case, that (I) Borrower’s obligation to indemnify for any Liabilities that arise in connection with a Disclosure Document that derives in part from information contained in Borrower Provided Information and in part from information either prepared by the Lender Group, the Issuer, the Underwriter Group or any other Person shall be limited to any untrue statement or omission of material fact contained in Borrower Provided Information known to Borrower that results directly from the Borrower Provided Information (or omission from the Borrower Provided Information) and (~~iii~~II) ~~agreeing~~ Borrower shall have no responsibility for (w) any statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to (or requested changes to) in writing to Agent or that were derived from Borrower Provided Third Party Reports, (x) numbers which have been submitted by Borrower and adjusted by any Indemnified Person from those submitted by Borrower, to the extent of such adjustment, (y) third party reports, such as environmental and physical condition reports that do not constitute Borrower Provided Third Party Reports, and (z) any financial projections. Borrower also agrees to reimburse ~~each Indemnified Person~~ Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by ~~such Indemnified Person~~Agent, ~~as they are incurred~~Lenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the ~~Liabilities provided~~Liabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, ~~however~~or is based upon, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in ~~the Covered Disclosure Information in~~ reliance ~~upon~~ upon, and in conformity ~~with~~ with, information furnished to ~~Lender or such Noteholder~~ Agent by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Documents~~ Document or in connection with the underwriting or ~~the~~ closing of the ~~Loan (~~Loan, including ~~without limitation~~ financial statements of ~~Borrower and~~ Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This ~~indemnity agreement~~ indemnification provision will be in addition to any liability which Borrower may otherwise have. ~~Moreover~~Borrower acknowledges and agrees that any Person that is included in the Lender Group, the ~~indemnification provided for in clauses (ii) and (iii) above~~ Issuer and/or the Underwriter Group that is not a direct party to this Agreement shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required deemed to be ~~stated therein or necessary in order~~ a third-party beneficiary to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection this Agreement with ~~defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in~~ respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.2(b), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower or its agents, counsel and representatives may be included in Disclosure Documents in connection with ~~the~~ a Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the ~~Rating Agencies,~~ NRSROs and other advisory and service providers relating to ~~the~~ a Securitization. In the event that ~~the~~ any Disclosure Document is required to be revised prior to the sale of all ~~Securities~~Securities in connection with a Securitization, Borrower will cooperate with Lender (or, if applicable, the holder of the ~~Note~~ applicable interest in the Loan) in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower hereby agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying indemnify Lender, ~~each Noteholder, JPM (whether or not it is the Lender)~~UBSRESI, any Affiliate of ~~JPM or a Noteholder~~ UBSRESI that has filed any registration statement relating to the Securitization or has acted as the issuer, the sponsor or depositor in connection with ~~the~~ a Securitization, any Affiliate of ~~JPM or a Noteholder~~ UBSRESI that acts as an underwriter, placement agent or initial purchaser of the Securities issued in ~~the~~ connection with a Securitization, any other ~~co-~~issuers, depositors, underwriters, ~~co-~~placement agents or ~~co-~~initial purchasers of the Securities issued in ~~the~~ connection with a Securitization, and each of their respective directors, officers~~, directors~~, partners, employees, representatives, agents and ~~Affiliates~~ Affiliates, and each Person ~~or entity who~~ that controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Securitization Indemnified ~~Persons~~Parties”), ) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, ~~damages, liabilities,~~ costs ~~or expenses (including, without limitation, legal fees~~ and expenses ~~for enforcement of these obligations~~ (collectively, the “Securitization Indemnification Liabilities”)) to which any ~~such~~ Securitization Indemnified ~~Person~~ Party may become subject insofar as the Securitization Indemnification Liabilities arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information~~ information provided to Lender by Borrower, any Affiliate of Borrower or ~~arise out~~ any of their respective agents, counsel or ~~are based upon~~ representatives, (ii) the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such information or necessary in order to make the statements in ~~the Covered Disclosure Information~~such information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (iii) ~~agreeing~~ a breach of the representations and warranties made by Borrower in Section 3.1.34 of this Agreement. Borrower also agrees to reimburse each Securitization Indemnified ~~Person~~ Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified ~~Person, as they are incurred,~~ Party in connection with investigating or defending the ~~Liabilities provided~~Securitization Indemnification Liabilities. Borrower’s liability under this paragraph will be limited to any such liability, ~~however~~obligation, loss, damage, penalty, action, judgment, suit, claim, cost or expense that ~~Borrower shall have liability with respect to Liabilities arising~~ arises out of or is based upon ~~the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such~~ an untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished ~~to Lender or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or ~~the~~ closing of the Loan (~~including~~ including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurateProperty). This indemnity ~~agreement~~ provision will be in addition to any obligation or liability which Borrower may otherwise have~~. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided~~. (c) In connection with ~~filings under the~~ Exchange Act Filings and information therein or other reports containing comparable information that are required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, as it relates to the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager (if any)) or any other aspect of the Loan, Borrower agrees to ~~indemnify~~ (i) indemnify the Securitization Indemnified ~~Persons~~ Parties for Securitization Indemnification Liabilities to which any ~~such~~ Securitization Indemnified ~~Person~~ Party may become subject insofar as the Securitization Indemnification Liabilities arise out of of, or are based ~~upon any~~ upon, an untrue statement or ~~alleged untrue statement~~ omission made in reliance upon, and in conformity with, information furnished to Lender by or on behalf of ~~any material fact~~ Borrower in connection with the ~~Covered~~ preparation of the Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in ~~light~~ connection with the underwriting or closing of the ~~circumstances under which they were made~~Loan or any of the reports, ~~not misleading~~ statements or other information furnished by or on behalf of Borrower pursuant to the terms of this Agreement, including financial statements of Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse each Securitization Indemnified ~~Person~~ Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified ~~Persons, as they are incurred,~~ Party in connection with defending or investigating the Securitization Indemnification Liabilities. (d) Promptly after receipt by an a Securitization Indemnified ~~Person~~ Party of notice of any claim or the commencement of any ~~action~~action or suit, ~~the~~ such Securitization Indemnified ~~Person~~ Party shall, if a claim for indemnification in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of ~~that action~~such action or suit; provided, however, that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have to an any Securitization Indemnified ~~Person~~ Party otherwise than under the provisions of this Section 9.2. If any such ~~claim~~ claim, action or ~~action~~ suit shall be brought against an any Securitization Indemnified ~~Person~~Party, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to ~~the~~ such Securitization Indemnified ~~Person~~Party. After notice from ~~any~~ Borrower to an the applicable Securitization Indemnified ~~Person~~ Party of ~~its~~ Borrower’s election to assume the defense of such ~~claim~~ claim, action or ~~action~~suit, Borrower shall not be liable to ~~the~~ such Securitization Indemnified ~~Person~~ Party for any legal or other costs and expenses subsequently incurred by ~~the~~ such Securitization Indemnified ~~Person~~ Party in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action or suit include both Borrower, on the one hand, and one or more Securitization Indemnified ~~Persons~~ Parties on the other hand, and an a Securitization Indemnified ~~Person~~ Party shall have reasonably concluded that there are ~~any~~ legal defenses available to it and/or other Securitization Indemnified ~~Persons~~ Parties that are different or in addition to those available to Borrower, the Securitization Indemnified ~~Person~~ Party or ~~Persons~~ Parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action or suit on behalf of such Securitization Indemnified ~~Person~~ Party or ~~Persons~~Parties. The Securitization Indemnified ~~Person~~ Party shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Securitization Indemnified ~~Person~~ Party is seeking or intends to seek reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are related solely ~~related~~ to the defense of a claim for which Borrower is required hereunder to indemnify such Securitization Indemnified ~~Person~~Party. Borrower shall not be liable for the costs and expenses of more than one (1) such separate counsel unless ~~such~~ a Securitization Indemnified ~~Person~~ Party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Securitization Indemnified ~~Person~~Party. (e) Without the prior written consent of the applicable Securitization Indemnified ~~Person in question~~ Party (which consent shall not be unreasonably ~~withheld~~withheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Securitization Indemnified ~~Person~~ Party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given ~~such~~ the applicable Securitization Indemnified ~~Person~~ Party reasonable prior notice thereof and shall have obtained an unconditional release of each Securitization Indemnified ~~Person hereunder~~ Party from all ~~liability~~ Securitization Indemnification Liabilities arising out of or relating to such claim, action, suit or ~~proceedings~~proceeding. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Securitization Indemnified ~~Person~~ Party without the consent of Borrower (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Securitization Indemnified ~~Person~~ Party harmless (with respect only to the Securitization Indemnification Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Securitization Indemnified ~~Person~~Party, on the other hand, shall contribute to the Securitization Indemnification Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Securitization Indemnified ~~Person~~Party, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) above but also the relative faults of Borrower, on the one hand, and all Securitization Indemnified ~~Persons~~Parties, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no ~~party~~ Person found liable for a fraudulent misrepresentation shall be entitled to contribution from any other ~~party~~ Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Securitization Indemnified ~~Persons~~ Parties collectively pursuant to this ~~paragraph~~ Section 9.2(f) exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Securitization Indemnified ~~Persons~~ Parties in connection with the closing of the ~~Loan or the Securitization~~Loan. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Securitization Indemnified ~~Person~~ Party is a formal party to any ~~lawsuits~~claim, ~~claims~~ action, suit or ~~other proceedings~~proceeding. Borrower further agrees that the Securitization Indemnified ~~Persons~~ Parties are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of Borrower and the Securitization Indemnified ~~Persons and Borrower~~ Parties under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Ionis Pharmaceuticals Inc), Loan Agreement (Ionis Pharmaceuticals Inc)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined ~~the~~ such Disclosure ~~Documents~~Documents specified by Lender and that each such Disclosure Document, ~~including~~as it relates to Borrower, ~~without limitation~~Borrower Affiliates, the ~~sections entitled “Risk Factors,” “Special Considerations,” “Description~~ Property, Manager and all other aspects of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesLoan, ~~Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do~~ does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Morgan Stanley Dean Witter & Co. ("Morgan Stanley") that has filed ~~any registration statement~~ txx xxxixxxxxxxx xxxxxxxxx relating to xx xxx Xxxxxxxization (the ~~Securitization or has acted as the sponsor or depositor in connection with the Securitization~~"Registration Statement"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”~~"Morgan Stanley Group"), and Morgan Stanley, each of its directors anx xxxx Xxxxxx who controls Mxxxxx Stanley withxx xxx xxxxxxx xx Xxxxxxx 00 xx xxx Xxxxxxxxxx Xct and Sxxxxxx 20 of the Exchange Act (collectively, the "Underwriter Group") for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “"Liabilities”)") to which ~~any such Indemnified Person~~ Lender, the Morgan Stanley Group or the Underwriter Group may become subject ~~insofar as the Liabilities~~ insxxxx xs xxx Xxabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in ~~the Covered Disclosure Information~~ such sections or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information~~such sections, in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Morgan Stanley Group and/or the Underwriter Group for any legal or ~~other expenses~~ oxxxx xxxxxxxx reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred,~~ the Morgan Stanley Group and the Underwriter Group in connection with ~~investigating or~~ inxxxxxxaxxxx xx defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ loss claim, damage or liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Documents~~ Document or in connection with the underwriting or ~~the~~ closing of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, operating statements, rent rolls, appraisals, market studies, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. ~~Moreover,~~ Lender will provide Borrower with copies of any third party reports concerning the ~~indemnification provided for~~ Property received by Lender and not Borrower to the extent the information contained in ~~clauses (ii) and (iii) above shall~~ any such report will be ~~effective whether or not an indemnification agreement described~~ used in ~~clause (i) above is provided~~connection with the preparation of the Disclosure Documents. (c) In connection with ~~filings~~ any filing under or pursuant to the Exchange Act ~~(if any)~~in connection with or relating to a Securitization, Borrower ~~agrees to indemnify~~ shall (i) indemnify Lender, the ~~Indemnified Persons~~ Morgan Stanley Group and the Underwriter Group for Liabilities to ~~which any such Indemnified Person~~ whxxx Xxnxxx, xxe Morgan Stanley Group or the Underwriter Group may become subject ~~insofar as the Liabilities~~ insxxxx xs xxx Xxabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Morgan Stanley Group or the Underwriter Group for any legal or other ~~expenses~~ xxxxxsxx xxxxonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Morgan Stanley Group or the Underwriter Group in connection with ~~defending or investigating~~ defxxxxxx xx xxxxstigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section 9.2, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Morgan Stanley's and Borrower's relative knowledge and access to infxxxxxxxx xxxxxxxing the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Reckson Associates Realty Corp), Loan Agreement (Reckson Operating Partnership Lp)

Securitization Indemnification. (a) ~~Borrower understands~~ Borrowers understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections ~~and such other information in~~ of the Disclosure Documents regarding the Properties, the Collateral, Mortgage Borrowers, Borrowers, Principal, Manager and/or the Loan (to the extent such information relates to or includes any Provided ~~Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Information) (collectively with the Provided Information, the “Covered Disclosure Information”), and (B) do that the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender~~, each Noteholder, JPM (whether or not it is the Lender)~~, any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, members, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Person” and collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including, without limitation,~~ including legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any of the ~~Covered~~ Disclosure ~~Information~~ Documents, but only to the extent based upon Provided Information, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review the Disclosure Document, or arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated therein or necessary in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which ~~Borrower~~ Borrowers may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the ~~Covered Disclosure~~ Provided Information, or the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated therein or necessary in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review such Exchange Act Filing, and (ii) to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably withheld, conditioned or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceeding. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The rights liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the ~~Debt~~Obligations. (i) Notwithstanding anything to the contrary contained herein, ~~Borrower~~ Borrowers shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)

Securitization Indemnification. (a) Borrower ~~understands~~ and Guarantor understand that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to ~~investors~~ Investors or prospective ~~investors~~ Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects with respect to Borrower, Guarantor, the ~~extent in Borrower’s possession~~Property and the Operating Tenant. (b) Borrower ~~agrees~~ and Guarantor agree to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, solely with respect to the ~~Disclosure Documents, including, without limitation~~factual contents thereof related to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the ~~Collateral~~Guarantor, the ~~Senior Mezzanine~~ Operating Tenant, the REIT, the Manager, the Franchisor, the Property, the Collateral ~~and/or Operating Company) (collectively with~~ and the Provided ~~Information, the “Covered Disclosure Information”~~Information and such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Xxxxxx Brothers Inc. (“Xxxxxx”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity~~ who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Xxxxxx Group”), and Xxxxxx, each of its directors and each Person who controls Xxxxxx within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above (but solely with respect to the ~~Covered Disclosure Information~~ factual contents thereof relating to the Loan, the Borrower, the Guarantor, the Operating Tenant, the REIT, the Manager, the Franchisor, the Property, the Collateral and the Provided Information), or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender the Xxxxxx Group and the Underwriter Group in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ Liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ debt, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This ~~indemnity agreement~~ indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower ~~agrees~~ and Guarantor agree to indemnify (i) Lender, the ~~Indemnified Persons~~ Xxxxxx Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Xxxxxx Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to such indemnified party. The indemnifying party’s legal counsel shall control the ~~Indemnified Person~~defense of such action, except that no settlement or compromise shall be accepted or entered into which would bind any indemnified party unless such indemnified party has given its prior written consent thereto, which consent will not be unreasonably withheld. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall not be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. Prior to the occurrence and the continuance of an Event of Default, in the event that any indemnified party wishes to enter into a settlement agreement in connection with such action which would give rise to an indemnified obligation of the indemnifying party hereunder and such indemnifying party does not consent to such settlement agreement, such indemnified party agrees not to enter into such settlement agreement provided the indemnifying party delivers evidence reasonably satisfactory to such indemnified party that the indemnifying party shall be able to satisfy its indemnification obligations under this Section in the event a judgment is rendered against the indemnifying party with respect to such action. In such event, the indemnifying party shall pay or, at the indemnified party’s option, reimburse it for the reasonable fees and expenses of its legal counsel and other professionals. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnifications provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution ~~from~~ from (i) Xxxxxx’x and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other ~~party who is not also found liable for such fraudulent misrepresentation~~equitable considerations appropriate in the circumstances. Lender, Borrower, and ~~(B) Borrower agrees~~ Guarantor hereby agree that ~~in no event shall the amount to~~ it would not be ~~contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ equitable if the amount of ~~the fees (~~such contribution were determined solely by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower, Guarantor and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Mezzanine Loan Agreement (Meristar Hospitality Corp), Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with ~~the~~ any Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Approved Rating Agencies, and service providers relating to ~~the~~ any Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in ~~updating the Disclosure Document by~~ providing ~~all~~ current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent such information is in Borrower’s ~~possession~~possession or control. (b) Borrower agrees to cause Parent to provide, in connection with ~~the~~ any Securitization, an indemnification agreement (a “Securitization Indemnification Agreement”) (i) certifying that (A) ~~Borrower~~ Parent has ~~carefully~~ examined the Covered Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Information and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure ~~Information”) do not~~ Information does not, as of the date of the related disclosure document or as of the date of pricing the Securitization, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, ~~each Noteholder, JPM (whether or not it is the Lender),~~ any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to ~~the~~ any Securitization or has acted as the sponsor or depositor in connection with ~~the~~ any Securitization, any ~~Affiliate of JPM or a Noteholder~~ Person that acts as an underwriter, placement ~~agent or initial purchaser of Securities issued in the Securitization~~agent, any other co-~~underwriters,~~ underwriters or co-placement ~~agents or co-initial purchasers of Securities issued in the Securitization~~agents, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these ~~obligations~~ obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Person in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of~~ Parent will be liable in any such case under clauses (ii) or ~~based upon the Covered Disclosure Information~~ (iii) above only to the extent that any such Liabilities arise out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with (1) the written information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the ~~preparation of the Disclosure Documents or in connection with the~~ underwriting or ~~the~~ closing of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Parent, operating statements and rent rolls with respect to the ~~Properties),~~ Properties and (2) those portions of the Disclosure Documents furnished to and approved by Parent in ~~no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided~~ the certificate furnished pursuant to ~~Borrower for comment at least five~~ clause (5i) ~~Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)~~above. This indemnity agreement will be in addition to any liability which ~~Borrower~~ any Relevant Party may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be ~~effective~~ effective, valid and binding obligations of Borrower, whether or not an indemnification agreement described in clause (i) above is provided. (c) ~~In connection with filings under the Exchange Act (if any)~~Any Securitization Indemnification Agreement shall provide that, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~Parent, notify ~~Borrower~~ Parent in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ Parent shall not relieve it from any liability which it may have under the indemnification provisions of this Section ~~9.2~~ 8.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ Parent shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section ~~9.2~~8.2. If Any Securitization Indemnification Agreement shall provide that, if any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ Parent thereof, ~~Borrower~~ Parent shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. ~~After~~ Any Securitization Indemnification Agreement shall provide that, after notice from ~~any Borrower~~ Parent to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ Parent shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~Parent, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~Parent, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. ~~The~~ Any Securitization Indemnification Agreement shall provide that, the Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ Parent is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ Any Securitization Indemnification Agreement shall provide that, Parent shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (ed) ~~Without~~ Any Securitization Indemnification Agreement shall provide that, without the prior written consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ Parent shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ Parent shall have given ~~such Indemnified Person~~ Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceedings and such settlement requires no statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of each Indemnified Person. As Any Securitization Indemnification Agreement shall provide that, as long as ~~Borrower~~ Parent has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ Parent shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ Parent (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (fe) ~~Borrower agrees~~ Any Securitization Indemnification Agreement shall provide that, Parent will agree that if any indemnification or reimbursement ~~sought pursuant to~~ described in this Section ~~9.2~~ 8.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are ~~the subject of~~ described in this Section ~~9.2~~8.2), then ~~Borrower~~Parent, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~Parent, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of ~~Borrower~~Parent, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. ~~Notwithstanding~~ Any Securitization Indemnification Agreement shall provide that, notwithstanding the provisions of described in this Section ~~9.2~~8.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ Parent will agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this ~~paragraph~~ Section 8.2(e) exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Indemnified Persons in connection with the closing of the ~~Loan or the Securitization~~Loan. (gf) ~~Borrower agrees~~ Any Securitization Indemnification Agreement shall provide that, Parent will agree that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 8.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ Any Securitization Indemnification Agreement shall provide that, Parent will further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~8.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Altisource Residential Corp), Loan Agreement (Altisource Residential Corp)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined ~~the~~ such Disclosure ~~Documents~~Documents specified by Lender and that to Borrower’s actual knowledge each such Disclosure Document, ~~including~~as it relates to Borrower, ~~without limitation~~Borrower Affiliates, the ~~sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower”~~ Property and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do Manager does not contain any untrue statement of a material fact or omit to state a material fact in Borrower’s actual knowledge, necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co. (“Xxxxxx Xxxxxxx”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Xxxxxx Xxxxxxx Group”), and Xxxxxx Xxxxxxx, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Xxxxxx Xxxxxxx or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, compensatory damages (but not consequential damages~~, liabilities, costs~~ ) or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections known by Borrower to be untrue or arise out of or are based upon the ~~Covered~~ omission or alleged omission to state therein a material fact in Borrower’s actual knowledge, required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Xxxxxx Xxxxxxx Group and/or the Underwriter Group for any legal or other reasonable expenses reasonably incurred by Lender, the Xxxxxx Xxxxxxx Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrower in connection with the preparation of the Disclosure ~~Information~~ Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property. Notwithstanding anything to the contrary contained herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, the Xxxxxx Xxxxxxx Group and the Underwriter Group. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. (c) In connection with Exchange Act Filings, Borrower shall (i) indemnify Lender, the Xxxxxx Xxxxxxx Group and the Underwriter Group for Liabilities to which Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact in Borrower’s actual knowledge required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Xxxxxx Xxxxxxx Group or the Underwriter Group in connection with defending or investigating the Liabilities. Notwithstanding anything to the contrary contained herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, the Xxxxxx Xxxxxxx Group and the Underwriter Group. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be he made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered, to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section 9.2, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (~~by underwriting discount~~ i) Xxxxxx Xxxxxxx’x and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or ~~otherwise~~omission; and (iii) ~~actually received by~~ any other equitable considerations appropriate in the ~~Indemnified Persons in connection with the closing of the Loan or the Securitization~~circumstances. (gf) ~~Borrower agrees that~~ Subject to the ~~indemnification~~provisions of Section 11.22 hereof, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the ~~Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The~~ liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)

Securitization Indemnification. (a) Each Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to ~~the~~ a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees to provide~~Upon Lender’s reasonable request, Borrowers shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) ~~Borrower has carefully~~ certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the ~~Disclosure Documents, including, without limitation~~Loan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, ~~Borrower, Mortgage Borrower~~the IP, the Collateral, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Managers, the ~~“Covered Disclosure Information”) do~~ Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ Credit Suisse (whether or not it is ~~the~~ Lender), any Affiliate of ~~JPM~~ Lender or ~~a Noteholder~~ Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM~~ Lender or ~~a Noteholder~~ Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages~~, liabilities, costs~~ ) or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the ~~Covered Disclosure Information~~ Properties, the IP, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements ~~in the Covered Disclosure Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Person in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of~~ Borrowers will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by ~~or on behalf of Borrower~~ Borrowers in connection with the preparation of ~~the~~ any Disclosure ~~Documents~~ Document(s) or in connection with the underwriting or ~~the~~ closing of the Loan ~~(including~~ or in the ordinary course of the Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an a separate indemnification agreement ~~described in clause (i) above~~ is provided. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, ~~Borrower agrees to indemnify~~ Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified ~~Person~~ Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the ~~Covered Disclosure Information~~Loan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in ~~the Covered~~ any such Disclosure ~~Information~~ Document a material fact in any Loan Party’s actual knowledge, required to be stated ~~therein or necessary~~ in such Disclosure Document in order to make the statements in ~~the Covered~~ such Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified ~~Persons, as they are incurred,~~ Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties. (d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of ~~any claim or~~ the commencement of any action, ~~the~~ such Indemnified Person ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrowers under this Section 9.3, notify ~~Borrower~~ Borrowers in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that the failure~~ omission to so notify ~~Borrower shall~~ Borrowers will not relieve it any Borrower from any liability which it any Borrower may have ~~under the indemnification provisions of this Section 9.2~~ to any Indemnified Person hereunder except to the extent that ~~it has been materially prejudiced by~~ such ~~failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes material prejudice to any ~~liability which it may have to an Indemnified Person otherwise than under~~ Borrower. In the ~~provisions of this Section 9.2. If~~ event that any ~~such claim or~~ action ~~shall be~~ is brought against an any Indemnified Person, and it ~~shall notify Borrower~~ notifies Borrowers of the commencement thereof, ~~Borrower shall~~ Borrowers will be entitled to participate therein and, to the extent that ~~it wishes~~they may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to ~~the~~ such Indemnified Person. After notice from ~~any Borrower~~ Borrowers to an such Indemnified Person ~~of its election to assume the defense of~~ under this Section 9.3, such ~~claim or action, Borrower shall not be liable to the~~ Indemnified Person shall pay for any legal or other expenses subsequently incurred by ~~the~~ such Indemnified Person in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ Indemnified Person and ~~one or more Indemnified Persons on~~ any Borrower and the ~~other hand, and an~~ Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or ~~in addition~~ additional to those available to ~~Borrower~~Borrowers, the Indemnified ~~Person or Persons~~ Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified ~~Person or Persons~~Person(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such~~ any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ Credit Suisse or Lender, as applicable (which consent shall not be unreasonably withheld), no Borrower shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ Borrowers shall have given ~~such Indemnified Person~~ Credit Suisse or Lender, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceeding. As long as ~~Borrower has~~ Borrowers have complied with ~~its~~ their obligations to defend and indemnify hereunder, ~~Borrower~~ Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ Borrowers (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section ~~9.2~~ 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section ~~9.2~~9.3), then ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of ~~Borrower~~Borrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section ~~9.2~~9.3, ~~(A)~~ no ~~party~~ Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other ~~party~~ Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ Borrowers further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~9.3. (h) ~~The~~ Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of ~~the Indemnified Persons~~ Borrowers and ~~Borrower~~ Lender under this Section ~~9.2~~ 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), First Mezzanine Loan Agreement (Morgans Hotel Group Co.)

Securitization Indemnification. (a) Borrower ~~understands~~ and Guarantor understand that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to ~~investors~~ Investors or prospective ~~investors~~ Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects with respect to Borrower, Guarantor, the ~~extent in Borrower’s possession~~Property and the Operating Tenant. (b) Borrower ~~agrees~~ and Guarantor agree to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, solely with respect to the ~~Disclosure Documents, including, without limitation~~factual contents thereof related to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the ~~Collateral~~Guarantor, the ~~Senior Mezzanine Collateral and/or~~ Operating ~~Company) (collectively with~~ Tenant, the REIT, the Manager, the Franchisor, the Property and the Provided ~~Information, the “Covered Disclosure Information”~~Information and such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Xxxxxx Brothers Inc. (“Xxxxxx”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity~~ who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Xxxxxx Group”), and Xxxxxx, each of its directors and each Person who controls Xxxxxx within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above (but solely with respect to the ~~Covered Disclosure Information~~ factual contents thereof relating to the Loan, the Borrower, the Guarantor, the Operating Tenant, the REIT, the Manager, the Franchisor, and the Property and the Provided Information), or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender the Xxxxxx Group and the Underwriter Group in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ Liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ debt, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This ~~indemnity agreement~~ indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower ~~agrees~~ and Guarantor agree to indemnify (i) Lender, the ~~Indemnified Persons~~ Xxxxxx Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Xxxxxx Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to such indemnified party. The indemnifying party’s legal counsel shall control the ~~Indemnified Person~~defense of such action, except that no settlement or compromise shall be accepted or entered into which would bind any indemnified party unless such indemnified party has given its prior written consent thereto, which consent will not be unreasonably withheld. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall not be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. Prior to the occurrence and the continuance of an Event of Default, in the event that any indemnified party wishes to enter into a settlement agreement in connection with such action which would give rise to an indemnified obligation of the indemnifying party hereunder and such indemnifying party does not consent to such settlement agreement, such indemnified party agrees not to enter into such settlement agreement provided the indemnifying party delivers evidence reasonably satisfactory to such indemnified party that the indemnifying party shall be able to satisfy its indemnification obligations under this Section in the event a judgment is rendered against the indemnifying party with respect to such action. In such event, the indemnifying party shall pay or, at the indemnified party’s option, reimburse it for the reasonable fees and expenses of its legal counsel and other professionals. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnifications provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Xxxxxx’x and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower, and Guarantor hereby agree that it would not be equitable if the amount of such contribution were determined solely by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower, Guarantor and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Meristar Hospitality Corp), Loan Agreement (Meristar Hospitality Operating Partnership Lp)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "DISCLOSURE Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the ~~“Securities Act”~~"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the ~~“Exchange Act”~~"EXCHANGE ACT"), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. ~~In the event that the~~ Lender shall provide Borrower adequate opportunity to review any such Disclosure Document ~~is required~~ and to ~~be revised prior~~ provide any such comment to ~~the sale of all Securities,~~ Lender as Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessiondeems necessary. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such ~~sections and such other information in the~~ Disclosure Documents ~~(to the extent~~ specified by Lender and that each such ~~information~~ Disclosure Document, as it relates to ~~or includes any Provided Information or any information regarding~~ Borrower, Borrower Affiliates, the Properties, ~~Borrower~~the Property Manager and all other aspects of the Loan, ~~Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do~~ does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~(and for purposes of this SECTION 12.3, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of ~~Section~~ SECTION 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”~~"LENDER GROUP"), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the ~~“Liabilities”)~~"LIABILITIES") to which ~~any such Indemnified Person~~ Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the ~~Covered~~ omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clause (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Information~~ Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, appraisals, market studies, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. (c) In connection with Exchange Act filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (~~iii~~ii) ~~agreeing to~~ reimburse ~~each Indemnified Person~~ Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred, in connection with investigating or defending~~ the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting~~ Group or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question (which consent shall not~~ this Section is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether or not any Indemnified Person is an actual or potential~~ indemnifiable under this Section, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Lender's and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this ~~Section 9.2~~ SECTION 12.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)

Securitization Indemnification. (a) Each Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to ~~the~~ a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees to provide~~Upon Lender’s reasonable request, Borrowers shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) ~~Borrower has carefully~~ certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the ~~Disclosure Documents, including, without limitation~~Loan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, ~~Borrower~~the IP, ~~Mortgage Borrower~~the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Managers, the ~~“Covered Disclosure Information”) do~~ Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ Credit Suisse (whether or not it is ~~the~~ Lender), any Affiliate of ~~JPM~~ Lender or ~~a Noteholder~~ Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM~~ Lender or ~~a Noteholder~~ Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages~~, liabilities, costs~~ ) or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the ~~Covered Disclosure Information~~ Properties, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements ~~in the Covered Disclosure Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Person in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of~~ Borrowers will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by ~~or on behalf of Borrower~~ Borrowers in connection with the preparation of ~~the~~ any Disclosure ~~Documents~~ Document(s) or in connection with the underwriting or ~~the~~ closing of the Loan ~~(including~~ or in the ordinary course of the Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an a separate indemnification agreement ~~described in clause (i) above~~ is provided. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, ~~Borrower agrees to indemnify~~ Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified ~~Person~~ Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the ~~Covered Disclosure Information~~Loan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in ~~the Covered~~ any such Disclosure ~~Information~~ Document a material fact in any Loan Party’s actual knowledge, required to be stated ~~therein or necessary~~ in such Disclosure Document in order to make the statements in ~~the Covered~~ such Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified ~~Persons, as they are incurred,~~ Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties. (d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of ~~any claim or~~ the commencement of any action, ~~the~~ such Indemnified Person ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrowers under this Section 9.3, notify ~~Borrower~~ Borrowers in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that the failure~~ omission to so notify ~~Borrower shall~~ Borrowers will not relieve it any Borrower from any liability which it any Borrower may have ~~under the indemnification provisions of this Section 9.2~~ to any Indemnified Person hereunder except to the extent that ~~it has been materially prejudiced by~~ such ~~failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes material prejudice to any ~~liability which it may have to an Indemnified Person otherwise than under~~ Borrower. In the ~~provisions of this Section 9.2. If~~ event that any ~~such claim or~~ action ~~shall be~~ is brought against an any Indemnified Person, and it ~~shall notify Borrower~~ notifies Borrowers of the commencement thereof, ~~Borrower shall~~ Borrowers will be entitled to participate therein and, to the extent that ~~it wishes~~they may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to ~~the~~ such Indemnified Person. After notice from ~~any Borrower~~ Borrowers to an such Indemnified Person ~~of its election to assume the defense of~~ under this Section 9.3, such ~~claim or action, Borrower shall not be liable to the~~ Indemnified Person shall pay for any legal or other expenses subsequently incurred by ~~the~~ such Indemnified Person in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ Indemnified Person and ~~one or more Indemnified Persons on~~ any Borrower and the ~~other hand, and an~~ Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or ~~in addition~~ additional to those available to ~~Borrower~~Borrowers, the Indemnified ~~Person or Persons~~ Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified ~~Person or Persons~~Person(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such~~ any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ Credit Suisse or Lender, as applicable (which consent shall not be unreasonably withheld), no Borrower shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ Borrowers shall have given ~~such Indemnified Person~~ Credit Suisse or Lender, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceeding. As long as ~~Borrower has~~ Borrowers have complied with ~~its~~ their obligations to defend and indemnify hereunder, ~~Borrower~~ Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ Borrowers (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section ~~9.2~~ 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section ~~9.2~~9.3), then ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of ~~Borrower~~Borrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section ~~9.2~~9.3, ~~(A)~~ no ~~party~~ Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other ~~party~~ Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ Borrowers further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~9.3. (h) ~~The~~ Subject to the provisions of Section 9.4(a) hereof, the liabilities and obligations of ~~the Indemnified Persons~~ Borrowers and ~~Borrower~~ Lender under this Section ~~9.2~~ 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Third Mezzanine Loan Agreement (Morgans Hotel Group Co.), Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)

Securitization Indemnification. (a) ~~Borrower understands~~ Borrowers understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ Borrowers will cooperate with the holder of the ~~Note~~ Notes in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections ~~and such other information in~~ of the Disclosure Documents regarding the Properties, Borrowers, Principals, Manager and/or the Loan (to the extent such information relates to or includes any Provided ~~Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Information) (collectively with the Provided Information, the “Covered Disclosure Information”), and (B) do that the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender~~, each Noteholder, JPM (whether or not it is the Lender)~~, any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, members, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Person” and collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including, without limitation,~~ including legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any of the ~~Covered~~ Disclosure ~~Information~~ Documents, but only to the extent based upon Provided Information, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review the Disclosure Document, or arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated therein or necessary in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which ~~Borrower~~ Borrowers may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided. (c) In connection with ~~filings under~~ the Exchange Act ~~(if any)~~Filing, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the ~~Covered Disclosure~~ Provided Information, or the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated therein or necessary in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review such Exchange Act Filing, and (ii) to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than ~~one~~ one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to ~~another Indemnified~~ any Indemnifying Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably withheld, conditioned or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceeding. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The rights liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the ~~Debt~~Obligations. (i) Notwithstanding anything to the contrary contained herein, ~~Borrower~~ Borrowers shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information required to be delivered by Borrower under Article 5 hereof necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower agrees to ~~provide~~provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or (ii), an "ISSUER PERSON") and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the "ISSUER GROUP") for any Losses to which Lender or the Issuer Group may become subject insofar as the Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or necessary in order to make the statements in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (B) agreeing to reimburse Lender and the Issuer Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (A) or (B) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group by or on behalf of Borrower in connection with the ~~Securitization~~Provided Information. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, an the indemnification ~~agreement (i) certifying that~~ provided for in Clauses (A) and (B) above shall be effective in the event an indemnification certificate certifying that Borrower has carefully examined any preliminary or a final offering memorandum described above or prospectus or other document (including any Investor or Rating Agency "term sheets" or presentations relating to the ~~Disclosure Documents~~Property and/or the Loan), ~~including~~as applicable, including without limitation, the sections entitled “"Special Considerations," and/or "Risk Factors,~~” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower”~~ " and “"Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” " or similar sections, and ~~(B)~~ all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and that, to the best of Borrower's knowledge, such sections (and ~~such~~ any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not ~~misleading,~~ misleading has been requested by Lender and has not been provided by Borrower and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide such requested indemnification certificate. (iic) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in In connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (~~collectively,~~ i) Lender and the ~~“Indemnified Persons”),~~ Issuer Group for ~~any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”))~~ Losses to which ~~any such Indemnified Person~~ Lender or the Issuer Group may become subject insofar as the Securities Liabilities ~~arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or~~ arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender or the Issuer Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons, as they are incurred,~~ Lender or the Issuer Group in connection with defending or investigating the Securities Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 13.5 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 13.5, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 13.5 the ~~defense of such claim or action, Borrower~~ indemnifying party shall ~~not~~ be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreements provided for in ~~question (which consent shall not~~ Section 13.5(c) or Section 13.5(d) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether~~ indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) the indemnified party's and Borrower's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower, and ~~Borrower~~ Lender under this Section ~~9.2~~ 13.5 shall survive the ~~termination~~ satisfaction of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information and the Required Records may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including a prospectus or private placement memorandum (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Provided Information or Required Reports for inclusion or summary in the Disclosure Document by providing all current information pertaining to Borrower and the Properties necessary to keep the Disclosure Document accurate and complete in all material respects with respect to ~~the extent in Borrower’s possession~~such matters. (b) In connection with each of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, Borrower agrees to ~~provide, in connection with the Securitization,~~ provide an indemnification ~~agreement~~ certificate: (iA) certifying that ~~(A)~~ Borrower has carefully examined those portions of such memorandum or prospectus, as applicable, pertaining to Borrower, the ~~Disclosure Documents, including, without limitation,~~ Properties and the Loan including applicable portions of the sections entitled ~~“Risk Factors,” “~~"Special Considerations~~,” “~~", "Description of the ~~Collateral,” “~~Mortgages", "Description of the ~~Mezzanine Loans,” “~~Mortgage Loans and Mortgaged Properties", "The ~~Operating Company,” “~~Manager", "The Borrower” " and “"Certain Legal Aspects of the ~~Mezzanine Loans,”~~ Mortgage Loan", and ~~(B)~~ such sections (and ~~such~~ any other ~~information in the Disclosure Documents (~~sections reasonably requested and pertaining to ~~the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage~~ Borrower, the ~~Collateral~~Properties or the Loan) to the best of Borrower's knowledge, ~~the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”)~~ do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.;

Appears in 2 contracts

Samples: Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the ~~Collateral, the Senior Mezzanine~~ Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: First Mezzanine Loan Agreement (Harrahs Entertainment Inc), First Mezzanine Loan Agreement (Harrahs Entertainment Inc)

Securitization Indemnification. ~~(a) Borrower understands~~ Lender shall be permitted to share all Provided Information with any actual or potential purchaser, transferee, assignee, Servicer, participant or Investor in a Secondary Market Transaction, Rating Agencies, investment banking firms, accounting firms, law firms and other third-party advisory firms involved with the Loan Documents or the applicable Secondary Market Transaction. It is understood that ~~certain of~~ the Provided Information may ultimately be ~~included in~~ incorporated into any offering document (“Disclosure ~~Documents in connection with~~ Document”) for the ~~Securitization~~ Secondary Market Transaction, and also may ~~also~~ be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and thus any actual or ~~provided~~ potential purchaser, transferee, assignee, Servicer, participant or ~~made available to investors~~ Investor in a Secondary Market Transaction may also see some or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale all of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit~~ . Subject to ~~state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender~~Section 13.20 hereof, each ~~Noteholder, JPM (whether or not it is the Lender), any Affiliate~~ of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, Borrower and each ~~of their respective officers, directors, partners, employees, representatives, agents~~ Guarantor irrevocably waives any and ~~Affiliates and each Person or entity who controls~~ all rights it may have under any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses applicable Laws (including, without limitation, ~~legal fees and expenses for enforcement~~ any right of ~~these obligations (collectively, the “Liabilities”)~~privacy) to prohibit such disclosure. Lender and all of the aforesaid third-party advisors and professional firms shall be entitled to rely on the information supplied by, or on behalf of, Borrower or any Guarantor. Borrower and each Guarantor hereby indemnify the Underwriter Group as to any Liabilities to which ~~any such Indemnified Person~~ the Underwriter Group may become subject in connection with any Disclosure Document and/or any Covered Rating Agency Information, in each case, insofar as ~~the~~ such Liabilities arise out of or are based upon any untrue statement ~~or alleged untrue statement~~ of any material fact ~~contained~~ in the ~~Covered Disclosure~~ Borrower Provided Information or and/or arise out of or are based upon the omission ~~or alleged omission~~ to state ~~in the Covered Disclosure Information~~ a material fact in the Borrower Provided Information required to be stated therein or necessary in order to make the statements in the applicable Disclosure Document and/or Covered ~~Disclosure Information,~~ Rating Agency Information in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities misleading; provided, however, ~~that Borrower~~ such indemnity shall ~~have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information~~ only apply to the extent that any such ~~Liabilities arise~~ Liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with the Borrower Provided Information or information (other than the Property Information unless Borrower has actual knowledge that any such Property Information is inaccurate in any material respect) supplied by, or on behalf of, Borrower or any Guarantor or any Affiliate of Borrower and furnished to Lender ~~or such Noteholder by or on behalf of Borrower~~ in connection with the preparation of ~~the~~ any Disclosure ~~Documents~~ Document or in connection with ~~the~~ underwriting or ~~the~~ closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Loan. ~~This~~ The aforesaid indemnity ~~agreement~~ will be in addition to any liability which Borrower or Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, ~~that the failure to notify Borrower~~ such indemnification shall ~~not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except~~ only be effective to the extent ~~that it has been materially prejudiced by such failure and~~Lender accurately states the information supplied by, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or ~~action shall be brought against an Indemnified Person, and it shall notify Borrower thereof~~on behalf of, Borrower ~~shall be entitled to participate therein and~~or any Guarantor, to or any Affiliate of Borrower or any Guarantor, in the ~~extent that it wishes, assume~~ Disclosure Document. Lender may publicize the ~~defense thereof with counsel reasonably satisfactory to~~ existence of the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person Debt in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable marketing for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationSecondary Market Transaction. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.), Loan Agreement (Cole Credit Property Trust Iv, Inc.)

Securitization Indemnification. (a) Borrower ~~understands~~ and Borrower Principal understand that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower ~~agrees~~ and Borrower Principal agree to ~~provide,~~ provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the ~~Securitization~~Property and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, which are delivered to Borrower and Borrower Principal for review, an indemnification ~~agreement~~ certificate (iA) certifying that (AI) Borrower ~~has~~ and Borrower Principal have carefully examined such memorandum or prospectus or other document actually delivered by or on behalf of Lender (including any Investor or Rating Agency "term sheets" or presentations relating to the ~~Disclosure Documents~~Property and/or the Loan), ~~including~~as applicable, including without limitation, the sections entitled “"Special Considerations," and/or "Risk Factors,~~” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower”~~ " and “"Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” " or similar sections, and all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and any other sections reasonably requested by Lender (all such sections, collectively, the "DISCLOSED MATERIALS"), and (BII) ~~such sections and such other information in the Disclosure Documents (~~to the ~~extent such information relates to or includes any Provided Information or any information regarding the Properties,~~ best of Borrower~~, Mortgage~~ 's knowledge except as specifically identified by Borrower, the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”)~~ Disclosed Materials do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 13.5, ~~each Noteholder, JPM (whether or not it is~~ Lender hereunder shall include its officers and directors) and the ~~Lender), any~~ Affiliate of ~~JPM or a Noteholder~~ Lender that (i) has filed ~~any~~ the registration ~~statement~~ statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or ~~has acted as the sponsor or depositor in connection with the Securitization~~(ii), ~~any Affiliate of JPM or a Noteholder that acts as~~ an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization"ISSUER PERSON"), and each director and officer of ~~their respective officers~~any Issuer Person, ~~directors, partners, employees, representatives, agents and Affiliates~~ and each Person or entity who controls any ~~such~~ Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”~~"ISSUER GROUP"), ~~for~~ and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any ~~losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees~~ such Person within the meaning of Section 15 of the Securities Act and ~~expenses for enforcement~~ Section 20 of ~~these obligations~~ the Exchange Act (collectively, the ~~“Liabilities”)~~"UNDERWRITER GROUP") for any Losses to which ~~any such Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group may become subject insofar as the ~~Liabilities~~ Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information~~ Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon the Disclosed Materials or any reports delivered by or on behalf of Borrower or Borrower Principal in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and, if Borrower or Borrower Principal do not provide the indemnification certificate, shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates. (c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 13.5 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 13.5, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 13.5 the ~~defense of such claim or action, Borrower~~ indemnifying party shall ~~not~~ be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreements provided for in ~~question (which consent shall not~~ Section 13.5(c) or Section 13.5(d) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether~~ indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) the indemnified party's, Borrower's and Borrower Principal's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower, Borrower Principal and ~~Borrower~~ Lender under this Section ~~9.2~~ 13.5 shall survive the ~~termination~~ satisfaction of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Maguire Properties Inc), Senior Mezzanine Loan Agreement (Maguire Properties Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement, private placement memorandum, offering circular or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower has carefully examined ~~the Disclosure Documents~~such memorandum, ~~including~~prospectus or term sheets, as applicable, including without limitation, the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and ~~(B)~~ such sections (and ~~such~~ any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lxxxxx Brothers Inc. (“Lxxxxx”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person or entity who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lxxxxx Group”), and Lxxxxx, each of its directors and each Person who controls Lxxxxx within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Lxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in ~~the Covered Disclosure Information~~ such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Lxxxxx Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender and Lxxxxx in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ Liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ debt, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This ~~indemnity agreement~~ indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower agrees to indemnify (i) Lender, the ~~Indemnified Persons~~ Lxxxxx Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Lxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Lxxxxx Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Lxxxxx Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall not be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnifications provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Lxxxxx’x and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)

Securitization Indemnification. (a) Borrower understands that ~~certain~~ information provided to Agent by Borrower and their agents, counsel and representatives relating to Mortgage Borrower, Borrower, Guarantor, their respective constituent owners, and the Properties (such information, whether provided pursuant to Section 9.1 above or otherwise in connection with the Loan, collectively, the “Borrower Provided Information”; which “Borrower Provided Information” shall be deemed not to include (i) an untrue statement of any material fact contained in Borrower Provided Third Party Report, except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided Borrower Provided Third Party Report that Borrower Provided Third Party Report contained such untrue statement of material fact and Borrower failed to alert Agent to same, or (ii) an omission of a material fact in Borrower Provided Third Party Report (which omission shall be deemed material if such fact should have been included in Borrower Provided Third Party Report in order to make the statements, in light of the circumstances under which they were made, not misleading), except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided Borrower Provided ~~Information~~ Third Party Report that Borrower Provided Third Party Report reflected such omission and Borrower failed to alert Agent to same) may be included in ~~Disclosure Documents~~ preliminary and final disclosure documents in connection with ~~the Securitization~~ any Secondary Market Transaction, including a Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, ~~the Rating Agencies~~investment banking firms, NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to ~~the~~ any Secondary Market Transaction, including a Securitization. ~~In the event~~ Borrower also understands that the ~~Disclosure Document is required to~~ findings and conclusions of any third-party due diligence report obtained by the Agent, the Issuer or the Securitization placement agent or underwriter may be ~~revised prior to~~ made publicly available if required, and in the ~~sale of all Securities~~manner prescribed, ~~Borrower will cooperate with the holder~~ by Section 15E(s)(4)(A) of the ~~Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate~~ Exchange Act and ~~complete in all material respects to the extent in Borrower’s possession~~any rules promulgated thereunder. (b) Borrower hereby agrees to ~~provide~~indemnify Agent (and for purposes of this Section 9.2, ~~in connection with~~ Agent shall include the ~~Securitization~~initial agent, ~~an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents~~initial lenders, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” their successors and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitizationassigns, and ~~each of~~ their respective ~~officers,~~ officers and directors~~, partners, employees, representatives, agents and Affiliates~~ ) and each Person ~~or entity~~ who controls ~~any such Person~~ the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Agent, Lenders, the Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based ~~upon~~ upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information or arise out of or are based upon~~ Borrower Provided Information, (B) the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in Borrower Provided Information or necessary in order to make the statements in ~~the Covered Disclosure~~ Borrower Provided Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, or (C) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this Agreement (Full and Accurate Disclosure); except, in each case, that (I) Borrower’s obligation to indemnify for any Liabilities that arise in connection with a Disclosure Document that derives in part from information contained in Borrower Provided Information and in part from information either prepared by the Lender Group, the Issuer, the Underwriter Group or any other Person shall be limited to any untrue statement or omission of material fact contained in Borrower Provided Information known to Borrower that results directly from the Borrower Provided Information (or omission from the Borrower Provided Information) and (~~iii~~II) ~~agreeing~~ Borrower shall have no responsibility for (w) any statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to (or requested changes to) in writing to Agent or that were derived from Borrower Provided Third Party Reports, (x) numbers which have been submitted by Borrower and adjusted by any Indemnified Person from those submitted by Borrower, to the extent of such adjustment, (y) third party reports, such as environmental and physical condition reports that do not constitute Borrower Provided Third Party Reports, and (z) any financial projections. Borrower also agrees to reimburse ~~each Indemnified Person~~ Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by ~~such Indemnified Person~~Agent, ~~as they are incurred~~Lenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the ~~Liabilities provided~~Liabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, ~~however~~or is based upon, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in ~~the Covered Disclosure Information in~~ reliance ~~upon~~ upon, and in conformity ~~with~~ with, information furnished to ~~Lender or such Noteholder~~ Agent by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Documents~~ Document or in connection with the underwriting or ~~the~~ closing of the ~~Loan (~~Loan, including ~~without limitation~~ financial statements of Borrower, Mortgage Borrower and Guarantor, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This ~~indemnity agreement~~ indemnification provision will be in addition to any liability which Borrower may otherwise have. ~~Moreover~~Borrower acknowledges and agrees that any Person that is included in the Lender Group, the ~~indemnification provided for in clauses (ii) and (iii) above~~ Issuer and/or the Underwriter Group that is not a direct party to this Agreement shall be ~~effective whether or not an indemnification agreement described in clause (i) above is provided~~deemed to be a third-party beneficiary to this Agreement with respect to this Section 9.2(b). (c) In connection with ~~filings under the~~ any Exchange Act ~~(if any)~~Filing or other reports containing comparable information that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to ~~indemnify~~ (i) indemnify Agent, Lenders, the ~~Indemnified Persons~~ Lender Group, the Issuer and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based ~~upon any~~ upon, an alleged untrue statement or alleged omission or an untrue statement or omission made in reliance upon, and in conformity with, Borrower Provided Information furnished to Agent by or on behalf of ~~any material fact~~ Borrower in connection with the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light preparation of the ~~circumstances under which they were made~~Disclosure Document or in connection with the underwriting or closing of the Loan, ~~not misleading~~ including financial statements of Borrower, Mortgage Borrower or Guarantor, operating statements and rent rolls with respect to any Property, and (ii) reimburse ~~each Indemnified Person~~ Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Agent, ~~as they are incurred~~Lenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person~~ such indemnified party pursuant to the immediately preceding sentence of ~~its election to assume the defense of~~ this Section 9.2(d), such ~~claim or action, Borrower~~ indemnifying party shall not ~~be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to ~~another Indemnified Person. (e)~~ any other indemnified party. Without the prior written consent of ~~the Indemnified Person in question~~ Agent (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no indemnifying party shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any ~~Indemnified Person~~ indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the indemnifying party shall have given ~~such Indemnified Person~~ Agent reasonable prior written notice thereof and shall have obtained an unconditional release of each ~~Indemnified Person~~ indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings~~. As long~~ , and such settlement requires no statement as ~~Borrower has complied with its obligations~~ to, or an admission of, fault, culpability or a failure to ~~defend and indemnify hereunder~~act, ~~Borrower shall not be liable for any settlement made~~ by ~~any Indemnified Person without~~ or on behalf of the ~~consent of Borrower (which consent shall not be unreasonably withheld)~~indemnified party. (fe) ~~Borrower agrees that if any indemnification~~ In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.2(b) or ~~reimbursement sought pursuant to this Section 9.2~~ (c) is ~~finally judicially determined to be unavailable~~ for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or ~~is insufficient~~ action in respect thereof) referred to ~~hold any Indemnified Person harmless~~ therein which would otherwise be indemnifiable under Section 9.2(b) or (~~with respect only to the Liabilities that are the subject of this Section 9.2~~c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the Issuer’s and applicable Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Agent and Borrower ~~agrees~~ hereby agree that in it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. In no event shall Borrower be required to indemnify an indemnified party with respect to any matter to the ~~amount to be contributed by~~ extent arising from the ~~Indemnified Persons collectively pursuant to this paragraph exceed the amount~~ gross negligence or willful misconduct of ~~the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~an indemnified party. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Agent under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: First Mezzanine Loan Agreement (Clipper Realty Inc.), Mezzanine Loan Agreement (Clipper Realty Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the ~~Securitization~~Properties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower has carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency "term sheets" or presentations relating to the ~~Disclosure Documents~~Properties and/or the Loan), ~~including~~as applicable, ~~without limitation~~relating to Borrower, Borrower Principal, their Affiliates, the ~~sections entitled “Risk Factors,” “Special Considerations,” “Description of~~ Loan, the ~~Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower”~~ Loan Documents and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, and any risks or special considerations relating thereto (the "REVIEWED SECTIONS"), and that, to the best of Borrower~~, Mortgage Borrower~~'s knowledge, the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”)~~ Reviewed Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 13.5, ~~each Noteholder, JPM (whether or not it is~~ Lender hereunder shall include its officers and directors) and the ~~Lender), any~~ Affiliate of ~~JPM or a Noteholder~~ Lender that (i) has filed ~~any~~ the registration ~~statement~~ statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or ~~has acted as the sponsor or depositor in connection with the Securitization~~(ii), ~~any Affiliate of JPM or a Noteholder that acts as~~ an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization"ISSUER PERSON"), and each director and officer of ~~their respective officers~~any Issuer Person, ~~directors, partners, employees, representatives, agents and Affiliates~~ and each Person or entity who controls any ~~such~~ Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”~~"ISSUER GROUP"), ~~for~~ and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any ~~losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees~~ such Person within the meaning of Section 15 of the Securities Act and ~~expenses for enforcement~~ Section 20 of ~~these obligations~~ the Exchange Act (collectively, the ~~“Liabilities”)~~"UNDERWRITER GROUP") for any Losses to which ~~any such Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group may become subject insofar as the ~~Liabilities~~ Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information~~ Reviewed Sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in the Reviewed Sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or necessary in order to make the statements in the ~~Covered Disclosure Information,~~ Reviewed Sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender and Issuer Group in connection with investigating or defending the ~~Liabilities~~ Securities Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that (i) any such Securities Liabilities arise out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender or ~~such Noteholder~~ any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or other document (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the ~~Properties),~~ Properties and ~~in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was~~ (ii) Lender or such Issuer Group or Investor Group did not ~~provided to Borrower for comment at least five (5) Business Days prior to its dissemination~~ have any actual independent knowledge of such untrue statement or ~~on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)~~omission. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in ~~clauses~~ Clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate; provided, however, neither Borrower nor Borrower Principal shall not be liable to the extent that any such Securities Liabilities relate solely to errors and omissions which Borrower expressly identified to Lender and remained uncorrected or with respect to any information not contained in the Reviewed Sections. (c) In connection with filings under the Exchange Act ~~(if any)~~or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the ~~Indemnified Persons~~ Issuer Group and the Underwriter Group for ~~Liabilities~~ Losses to which ~~any such Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Issuer Group or the Underwriter Group in connection with defending or investigating the ~~Liabilities~~Securities Liabilities provided, however, Borrower shall not be liable to the extent that any such Securities Liabilities relate solely to errors and omissions which Borrower expressly identified to Lender and remained uncorrected or with respect to any information not contained in the Reviewed Sections or as to which Lender or such Issuer Group or Investor Group had actual independent knowledge of such untrue statement, error or omission. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 13.5 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 13.5, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 13.5 the ~~defense of such claim or action, Borrower~~ indemnifying party shall ~~not~~ be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified 100 party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreements provided for in ~~question (which consent shall not~~ Section 13.5(c) or Section 13.5(d) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether~~ indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) the indemnified party's, Borrower's and Borrower Principal's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower and ~~Borrower~~ Lender under this Section ~~9.2~~ 13.5 shall survive the ~~termination~~ satisfaction of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Corporate Property Associates 16 Global Inc), Loan Agreement (Corporate Property Associates 15 Inc)

Appears in 2 contracts

Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)

Securitization Indemnification. (a) Borrower ~~understands~~ and Borrower Principal understand that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower ~~agrees~~ and Borrower Principal agree to ~~provide,~~ provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Securitization~~Property and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, which are delivered to Borrower and Borrower Principal for review, an indemnification ~~agreement~~ certificate (iA) certifying that (AI) Borrower ~~has~~ and Borrower Principal have carefully examined such memorandum or prospectus or other document actually delivered by or on behalf of Lender (including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Disclosure Documents~~Property and/or the Loan), ~~including~~as applicable, including without limitation, the sections ~~entitled~~ relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and any other sections reasonably requested by Lender (all such sections, collectively, the “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Disclosed Materials”), and (BII) ~~such sections and such other information in the Disclosure Documents (~~to the ~~extent such information relates to or includes any Provided Information or any information regarding the Properties,~~ best of Borrower~~, Mortgage~~ ’s knowledge except as specifically identified by Borrower, the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”)~~ Disclosed Materials do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 13.5, ~~each Noteholder, JPM (whether or not it is~~ Lender hereunder shall include its officers and directors) and the ~~Lender), any~~ Affiliate of ~~JPM or a Noteholder~~ Lender that (i) has filed ~~any~~ the registration ~~statement~~ statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or ~~has acted as the sponsor or depositor in connection with the Securitization~~(ii), ~~any Affiliate of JPM or a Noteholder that acts as~~ an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of ~~their respective officers~~any Issuer Person, ~~directors, partners, employees, representatives, agents and Affiliates~~ and each Person or entity who controls any ~~such~~ Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Issuer Group”), ~~for~~ and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any ~~losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees~~ such Person within the meaning of Section 15 of the Securities Act and ~~expenses for enforcement~~ Section 20 of ~~these obligations~~ the Exchange Act (collectively, the “~~Liabilities~~Underwriter Group”)) for any Losses to which ~~any such Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group may become subject insofar as the ~~Liabilities~~ Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information~~ Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon the Disclosed Materials or any reports delivered by or on behalf of Borrower or Borrower Principal in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and, if Borrower or Borrower Principal do not provide the indemnification certificate, shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates. (c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading and (~~iii~~ii) ~~agreeing to~~ reimburse ~~each Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred,~~ the Issuer Group or the Underwriter Group in connection with defending or investigating ~~or defending~~ the ~~Liabilities~~ Securities Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ and Borrower Principal will be liable in any such case under clauses (i) or ~~based upon the Covered Disclosure Information~~ (ii) above only to the extent that (I) such Mortgagor Information is accurately set forth in such filings under the Exchange Act or is accurately disclosed to the holders of Securities (as applicable), and (II) any such Securities Liabilities arise out of or are based upon any such untrue statement or omission of a material fact made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with ~~information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with~~ the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Mortgagor Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 13.5 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 13.5, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 13.5 the ~~defense of such claim or action, Borrower~~ indemnifying party shall ~~not~~ be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreements provided for in ~~question (which consent shall not~~ Section 13.5(c) or Section 13.5(d) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether~~ indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower, Borrower Principal and ~~Borrower~~ Lender under this Section ~~9.2~~ 13.5 shall survive the ~~termination~~ satisfaction of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Approved Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in ~~updating the Disclosure Document by~~ providing ~~all~~ current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent such information is in Borrower’s ~~possession~~possession or control. (b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has ~~carefully~~ examined the Covered Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Information and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure ~~Information”) do~~ Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, ~~each Noteholder, JPM (whether or not it is the Lender),~~ any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as an underwriter, placement ~~agent or initial purchaser of Securities issued in the Securitization~~agent, any other co-~~underwriters,~~ underwriters or co-placement ~~agents or co-initial purchasers of Securities issued in the Securitization~~agents, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these ~~obligations~~ obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Person in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (ii) or ~~based upon the Covered Disclosure Information~~ (iii) above only to the extent that any such Liabilities arise out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with (1) the written information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the ~~preparation of the Disclosure Documents or in connection with the~~ underwriting or ~~the~~ closing of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Borrower, operating statements and rent rolls with respect to the ~~Properties),~~ Properties and (2) those portions of the Disclosure Documents furnished to and approved by Borrower in ~~no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided~~ the certificate furnished pursuant to ~~Borrower for comment at least five~~ clause (5i) ~~Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)~~above. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be ~~effective~~ effective, valid and binding obligations of Borrower, whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section ~~9.2~~ 8.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section ~~9.2~~8.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from ~~any~~ Borrower to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (ed) Without the prior written consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably ~~withheld~~withheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given ~~such Indemnified Person~~ Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceedings and such settlement requires no statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of each Indemnified Person. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (fe) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section ~~9.2~~ 8.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section ~~9.2~~8.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section ~~9.2~~8.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this ~~paragraph~~ Section 8.2(e) exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Indemnified Persons in connection with the closing of the ~~Loan or the Securitization~~Loan. (gf) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 8.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~8.2. (hg) The liabilities and obligations of the Indemnified Persons and Borrower under this Section ~~9.2~~ 8.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (ih) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (American Homes 4 Rent), Loan Agreement (American Homes 4 Rent)

Securitization Indemnification. (a) Borrower ~~understands~~ and Guarantor understand that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to ~~investors~~ Investors or prospective ~~investors~~ Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects with respect to Borrower, Guarantor, the ~~extent in Borrower’s possession~~Property and the Operating Tenant. (b) Borrower ~~agrees~~ and Guarantor agree to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, solely with respect to the ~~Disclosure Documents, including, without limitation~~factual contents thereof related to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the ~~Collateral~~Guarantor, the ~~Senior Mezzanine Collateral and/or~~ Operating ~~Company) (collectively with~~ Tenant, the REIT, the Manager, the Franchisor, the Property and the Provided ~~Information, the “Covered Disclosure Information”~~Information and such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Xxxxxx Brothers Inc. (“Xxxxxx”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity~~ who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Xxxxxx Group”), and Xxxxxx, each of its directors and each Person who controls Xxxxxx within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above (but solely with respect to the ~~Covered Disclosure Information~~ factual contents thereof relating to the Loan, the Borrower, the Guarantor, the Operating Tenant, the REIT, the Manager, the Franchisor, and the Property and the Provided Information), or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender the Xxxxxx Group and the Underwriter Group in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ Liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ debt, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This ~~indemnity agreement~~ indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower ~~agrees~~ and Guarantor agree to indemnify (i) Lender, the ~~Indemnified Persons~~ Xxxxxx Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Xxxxxx Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to such indemnified party. The indemnifying party’s legal counsel shall control the ~~Indemnified Person~~defense of such action, except that no settlement or compromise shall be accepted or entered into which would bind any indemnified party unless such indemnified party has given its prior written consent thereto, which consent will not be unreasonably withheld. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall not be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. Prior to the occurrence and the continuance of an Event of Default, in the event that any indemnified party wishes to enter into a settlement agreement in connection with such action which would give rise to an indemnified obligation of the indemnifying party hereunder and such indemnifying party does not consent to such settlement agreement, such indemnified party agrees not to enter into such settlement agreement provided the indemnifying party delivers evidence reasonably satisfactory to such indemnified party that the indemnifying party shall be able to satisfy its indemnification obligations under this Section in the event a judgment is rendered against the indemnifying party with respect to such action. In such event, the indemnifying party shall pay or, at the indemnified party’s option, reimburse it for the reasonable fees and expenses of its legal counsel and other professionals. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnifications provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Xxxxxx’x and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower, and Guarantor hereby agree that it would not be equitable if the amount of such contribution were determined solely by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower, Guarantor and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined ~~the~~ such Disclosure ~~Documents~~Documents specified by Lender and that each such Disclosure Document, ~~including~~as it relates to Borrower, ~~without limitation~~Borrower Affiliates, ~~the sections entitled “Risk Factors,” “Special Considerations,” “Description~~ Individual Properties, Manager and all other aspects of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesLoan, ~~Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do~~ does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co. (“Xxxxxx Xxxxxxx”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Xxxxxx Xxxxxxx Group”), and Xxxxxx Xxxxxxx, Deutsche Bank Securities Inc. and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Xxxxxx Xxxxxxx, Deutsche Bank Securities Inc. or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the ~~Covered~~ omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Xxxxxx Xxxxxxx Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Xxxxxx Xxxxxxx Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that (i) Borrower shall have had an opportunity to review, comment on and approve the relevant section of the Disclosure ~~Information~~ Document and that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, appraisals, market studies, environmental site assessment reports and property condition reports with respect to the Individual Properties and (ii) Borrower will not be liable for any omission of a material fact if information containing such material fact is provided to Lender and designated by Borrower for inclusion in a Disclosure Document, but is not actually included in such Disclosure Document. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. (c) In connection with Exchange Act Filings, Borrower shall (i) indemnify Lender, the Xxxxxx Xxxxxxx Group and the Underwriter Group for Liabilities to which Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Xxxxxx Xxxxxxx Group or the Underwriter Group in connection with defending or investigating the Liabilities; provided, however, that Borrower will not be liable for any omission of a material fact if information containing such material fact is provided to Lender and designated by Borrower for inclusion in a Disclosure Document, but is not actually included in such Disclosure Document. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under the agreement referred to in Section 9.2(b) above of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under the agreement referred to in Section 9.2(b) above, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election~~ such indemnified party under the agreement referred to ~~assume the defense of~~ in Section 9.2(b) above, such ~~claim or action, Borrower~~ indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Xxxxxx Xxxxxxx’x and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Host Marriott Corp/), Loan Agreement (Host Marriott L P)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization,~~ a Securitization an indemnification agreement (iA) certifying that (Ai) Borrower has carefully examined the Disclosure ~~Documents, including, without limitation, the~~ Documents sections entitled “~~Risk Factors,” “Special Considerations,”~~ Descriptions of the Mortgages”, “Description of the ~~Collateral,” “Description of the Mezzanine Loans,”~~ Mortgage Loans and Mortgaged Property”, “The ~~Operating Company,”~~ Manager”, “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans,~~Mortgage Loan” and (Bii) such sections and such other information in the Disclosure ~~Documents (~~Documents, but in each case solely as it relates to Borrower, Borrower Affiliates, the Property, Manager and all other aspects of the Loan and solely to the extent ~~such~~ the information ~~relates~~ therein was furnished to Lender by or ~~includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively~~ on behalf of Borrower in connection with the ~~Provided Information~~preparation of the Disclosure Documents or the underwriting and closing of the Loan (collectively, the “Covered Disclosure Information”) ), do not contain any untrue statement of a material fact known to Borrower or omit to state a material fact known to Borrower necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lender Group”), and Lender, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, such ~~Indemnified Person, as they are incurred,~~ Lender Group and the Underwriter Group in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ loss claim, damage or liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Documents~~ Document or in connection with the underwriting or ~~the~~ closing of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have~~. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided~~. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, Borrower ~~agrees to indemnify~~ shall (i) indemnify Lender, the ~~Indemnified Persons~~ Lender Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section 9.2, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Lender’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)

Securitization Indemnification. (a) Borrower ~~understands~~ and Borrower Principal understand that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower ~~agrees~~ and Borrower Principal agree to ~~provide,~~ provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Securitization~~Properties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower ~~has~~ and Borrower Principal have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Disclosure Documents~~Properties and/or the Loan), ~~including~~as applicable, including without limitation, the sections entitled “~~Risk Factors,” “~~Special Considerations,” and/or “~~Description of the Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” or similar sections, and ~~(B) such~~ all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and ~~such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding~~ the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge except as identified by Borrower, ~~Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company)~~ such sections (~~collectively with the Provided Information~~and any other sections reasonably requested by Lender (collectively, the “~~Covered Disclosure Information~~Disclosed Materials”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 13.5, ~~each Noteholder, JPM (whether or not it is~~ Lender hereunder shall include its officers and directors) and the ~~Lender), any~~ Affiliate of ~~JPM or a Noteholder~~ Lender that (i) has filed ~~any~~ the registration ~~statement~~ statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or ~~has acted as the sponsor or depositor in connection with the Securitization~~(ii), ~~any Affiliate of JPM or a Noteholder that acts as~~ an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of ~~their respective officers~~any Issuer Person, ~~directors, partners, employees, representatives, agents and Affiliates~~ and each Person or entity who controls any ~~such~~ Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Issuer Group”), ~~for~~ and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any ~~losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees~~ such Person within the meaning of Section 15 of the Securities Act and ~~expenses for enforcement~~ Section 20 of ~~these obligations~~ the Exchange Act (collectively, the “~~Liabilities~~Underwriter Group”)) for any Losses to which ~~any such Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group may become subject insofar as the ~~Liabilities~~ Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered~~ Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties but excluding any Projections made in good faith by Borrower. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, preliminary Disclosure ~~Information~~ Documents shall not inure to the benefit of any member of the Issuer Group or the Underwriting Group (or any person controlling such Issuer Group or Underwriting Group) from whom the Person asserting any such Loss purchased any securities which are the subject thereof if Borrower shall sustain the burden of proving that any such Loss resulted from the fact that such Person was not provided with a copy of the final Disclosure Documents at or prior to the written confirmation of the sale of such securities to such Person and the Loss resulted from untrue statement or misstatement contained in, or omission from, the preliminary Disclosure Documents that were corrected in the final Disclosed Documents. The indemnity set forth in this Section 13.5 shall not apply with respect to any Securities Liabilities that arise out of or are based upon any untrue statement, misstatement or omission or any alleged untrue statement, misstatement or omission to state in the Disclosed Materials a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading, if such untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission related to statements and information that do not accurately reflect the Disclosed Materials or any corrections or updates to the Disclosed Materials which were provided prior to the final Disclosure Documents to investors and neither Borrower nor Borrower’s Principal has been given reasonable opportunity to review the proposed filing under the Securities Act or Exchange Act and to correct such untrue statement, misstatement or omission. (c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 13.5 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 13.5, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 13.5 the ~~defense of such claim or action, Borrower~~ indemnifying party shall ~~not~~ be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreements provided for in ~~question (which consent shall not~~ Section 13.5(c) or Section 13.5(d) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether~~ indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower, Borrower Principal and ~~Borrower~~ Lender under this Section ~~9.2~~ 13.5 shall survive the ~~termination~~ satisfaction of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Capital Lodging), Mezzanine Loan Agreement (Capital Lodging)

Securitization Indemnification. (a) Subject to Section 9.1.1(d), Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In Subject to Section 9.1.1(d), in the event that ~~the~~ any Disclosure Document is required to be revised prior to the sale of all Securities, Borrower ~~will~~ shall cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ Subject to Section 9.1.1(d), the Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans,” “The Operating Company~~Mortgage Loan and Mortgaged Properties,” “The Borrower,” ~~and~~ “The Master Tenants,” “The Third Party Subleases”, “The Master Leases,” “The Lineage Subtenants”, the “Lineage Subleases”, “Certain Legal Aspects of the ~~Mezzanine Loans,~~Mortgage Loan” and “the Ground Leases” (or similar entitled sections), and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, ~~Mortgage Borrower~~any Master Tenant, any Lineage Subtenant, Sole Member, Guarantor and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying ~~Lender, each Noteholder, JPM (whether or not it is~~ the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified ~~Persons”),~~ Parties for any losses, claims, damages, ~~liabilities,~~ liabilities or reasonable and documented costs or and expenses (including, without limitation, reasonable and documented legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified ~~Person~~ Party may become subject insofar as the Liabilities arise out of or are based upon any ~~untrue statement or alleged~~ untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the ~~omission or alleged~~ omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified ~~Person~~ Party for any reasonable and documented legal or other expenses incurred by such Indemnified ~~Person~~Party, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be ~~effective~~ effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (i) above is provided~~. (c) In connection with filings under the Exchange Act (if any)~~. For purposes of this Agreement, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information shall not include, (v) any information subject to a ~~material fact required~~ confidentiality agreement as set forth in Section 9.1.1(d) above, other than ICE Disclosure Detail, (w) any untrue statements or omissions about which Xxxxxxxx has provided notice in writing (which may be by email to ~~be stated therein or necessary in order to make the statements in the Covered Disclosure Information~~Xxxxxx Xxxxxxx (xxxxxx.xxxxxxx@xx.xxx), ~~in light~~ Xxxxxxxxx Xxxxxxxxxxx (xxxxxxxxx.xxxxxxxxxxx@xx.xxx), Xxxx Xxxxxxx (xxxx.xxxxxxx@xx.xxx), Xxxx Xxxxxxxx, Esq. (xxxxxxxxx@xxxx.xxx), Xxxx Xxxxxxxxx, Esq. (xxxx.xxxxxxxx@xxx.xxx)) and such other individuals that any of the ~~circumstances under which they were made~~foregoing may designate via email to Xxxxx Xxxxxxx (xxxxx@xxx-xxxxx.xxx), ~~not misleading~~ Xxxxx Xxxxxxx (xxxxxxxx@xxxxxxxxxxxxxxxx.xxx), Xxxxx Xxxxxx (xxxxxxx@xxxxxxxxxxxxxxxx.xxx), and Xxxxxx Xxxxxx (iixxxxxx.xxxxxx@xx.xxx)) ~~reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating~~ prior to the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing distribution of the ~~claim~~ Disclosure Document; provided that such notice is not inconsistent with (and the applicable comment, correction or ~~the commencement~~ objection by Borrower is consistent with) information provided by or on behalf of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person Lender in connection with the ~~defense thereof except as provided in the following sentence; provided~~Loan, ~~however, if the defendants in~~ (x) any ~~such action include both Borrower, on the one hand, and one~~ statements which are derived from third party information not prepared by or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of ~~such Indemnified Person~~ Borrower, any Master Tenant, Sole Member or ~~Persons. The Indemnified Person shall instruct its counsel~~ Guarantor with respect to ~~maintain reasonably detailed billing records for fees and disbursements for~~ which ~~such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records~~ Borrower has provided notice to ~~substantiate that such counsel’s fees and disbursements are solely related~~ Lender in writing prior to the ~~defense~~ distribution of ~~a claim for~~ the Disclosure Document that Borrower is unable to verify, (y) any Disclosure Document (or any provisions thereof) with respect to which Borrower is ~~required hereunder~~ not provided a reasonable opportunity to ~~indemnify~~ review (unless such ~~Indemnified Person.~~ Disclosure Document (or such provisions thereof) is consistent in all material respects with information provided to Lender by or on behalf of Borrower), it being acknowledged and agreed that Borrower shall ~~not be liable for the expenses~~ in all events have two (2) Business Days to review each draft of ~~more than one~~ any Disclosure Document (1or any provision thereof), or (z) ~~such separate counsel unless such~~ any misstatements or omissions resulting from any Indemnified ~~Person shall have reasonably concluded that there may be legal defenses available~~ Party’s failure to ~~it that are different from~~ accurately transcribe written information delivered to Lender by or ~~additional~~ on behalf of Borrower or failure to ~~those available~~ include information provided to ~~another Indemnified Person. (e) Without the~~ Lender by Borrower prior ~~consent~~ to distribution of the ~~Indemnified Person in question (which consent shall not be unreasonably withheld)~~applicable Disclosure Document, Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower ~~shall have given~~ has been provided a reasonable opportunity to review such ~~Indemnified Person reasonable prior notice thereof~~ Disclosure Documents (or the applicable portions thereof) and ~~shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out~~ failed to notify Lender of such ~~claim, action, suit~~ misstatements or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld)omissions. (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the ~~Note~~ Note, which is the subject of the prospective Securitization, in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower agrees to provide, in connection with ~~the~~ any Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Pledge Agreements,” “Description of the ~~Mezzanine Loans,~~Collateral” ~~“The Operating Company,”~~ and “The Borrower~~” and “Certain Legal Aspects of the Mezzanine Loans~~,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the ~~Properties, Borrower, Mortgage Borrower~~Property, the Collateral, the ~~Senior~~ First Mezzanine ~~Collateral~~ Collateral, Mortgage Borrower, Borrower, the First Mezzanine Borrower and/or ~~Operating Company~~the Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying ~~Lender, each Noteholder, JPM~~ Lender (whether or not it is the ~~Lender~~Lender that is the holder of the Note which is the subject of the Securitization), any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any actual losses, claims, damages, liabilities, costs or expenses (including, without limitation, reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any reasonable legal or other actual, out-of-pocket expenses incurred by such Indemnified ~~Person, as they are incurred,~~ Person in connection with ~~investigating or~~ defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any reasonable legal or other actual, out-of-pocket expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending ~~or investigating~~ the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section ~~9.2~~ 12.1.6 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section ~~9.2~~12.1.6. If any such claim or action shall be brought against an Indemnified Person~~, and it shall notify Borrower thereof~~, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from ~~any~~ Borrower to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably withheld), conditioned or delayed, Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given ~~such Indemnified Person~~ Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section ~~9.2~~ 12.1.6 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section ~~9.2~~12.1.6), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section ~~9.2~~12.1.6, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 12.1.6 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~12.1.6. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section ~~9.2~~ 12.1.6 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no not any obligation to act as depositor with respect to the Loan or any portion thereof which is the subject of any Securitization or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Second Mezzanine Loan Agreement, Second Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with ~~the~~ any Assisted Securitization and may also be included in filings with the ~~Securities and Exchange Commission~~ SEC pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities ~~and~~ Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to ~~the~~ any Assisted Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with ~~the holder of the Note~~ each Initial Lender in updating the Disclosure Document in connection with an Assisted Securitization by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower agrees to provide, in connection with ~~the~~ any Assisted Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, if applicable and without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and/or such sections in Disclosure Documents under different headings and containing information provided by the Borrower relating to the Properties, Borrower, Principal, Holdings, the Operating Company and the Loan and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, ~~Mortgage Borrower~~Principal, Holdings, the ~~Collateral,~~ Operating Company and the ~~Senior Mezzanine Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying the applicable Initial Lender, ~~each Noteholder, JPM (whether or not it is the Lender),~~ and any Affiliate of ~~JPM or a Noteholder~~ such Initial Lender that has filed any registration statement relating to ~~the~~ an Assisted Securitization or has acted as the sponsor or depositor in connection with ~~the~~ an Assisted Securitization, any Affiliate of ~~JPM or a Noteholder~~ the applicable Initial Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Assisted Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Assisted Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject (whether or not arising from any third party claim) insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to the applicable Initial Lender or ~~such Noteholder~~ the Noteholders by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Initial Lender in writing and Initial Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section ~~9.2~~ 9.10 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section ~~9.2~~9.10. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section ~~9.2~~ 9.10 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section ~~9.2~~9.10), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section ~~9.2~~9.10, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 9.10 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~9.10. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section ~~9.2~~ 9.10 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt~~. (i)~~ . Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement, Loan Agreement (Harrahs Entertainment Inc)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In Notwithstanding the ~~event that~~ foregoing, Lender and its agents shall keep confidential such information specifically identified by Borrower as being subject to confidentiality provisions set forth in the ~~Disclosure Document~~ Management Agreement and, without limitation on the foregoing, no reference to Marriott Manager, any Affiliate of Marriott Manager, or any “Renaissance Trademark” (as defined in the Marriott Management Agreement) shall be made in any prospectus, private placement memorandum, offering circular or offering documentation related thereto issued which is ~~required~~ designed to ~~be revised prior~~ interest potential investors in debt or equity securities related to the ~~sale of all Securities~~Property, ~~Borrower will cooperate with the holder of the Note~~ unless Marriott Manager has given its prior written approval to each such reference, which Marriott Manager may withhold in ~~updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate~~ its sole and ~~complete in all material respects to the extent in Borrower’s possession~~absolute discretion. (b) Upon Lender’s reasonable request, Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined ~~the~~ such Disclosure ~~Documents~~Documents specified by Lender and that to Borrower’s actual knowledge, ~~including~~each such Disclosure Document, ~~without limitation~~as it relates to Borrower, Borrower Affiliates, the ~~sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower”~~ Property and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesManager, ~~Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do~~ does not contain any untrue statement of a material fact or omit to state a material fact in Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lender Group”), and Lender, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages~~, liabilities, costs~~ ) or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections known by Borrower to be untrue or arise out of or are based upon the ~~Covered~~ omission or alleged omission to state therein a material fact in Borrower’s actual knowledge, required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any reasonable legal or other reasonable expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrower in connection with the preparation of the Disclosure ~~Information~~ Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property. Notwithstanding anything to the contrary herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, Lender Group and the Underwriter Group. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. (c) In connection with Exchange Act Filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact in Borrower’s actual knowledge, required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Lender Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities. Notwithstanding anything to the contrary contained herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, Lender Group and the Underwriter Group. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section 9.2, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (~~by underwriting discount~~ i) Lender’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or ~~otherwise~~omission; and (iii) ~~actually received by~~ any other equitable considerations appropriate in the ~~Indemnified Persons in connection with the closing of the Loan or the Securitization~~circumstances. (gf) ~~Borrower agrees that~~ Subject to the ~~indemnification~~provisions of Section 9.4 hereof, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the ~~Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The~~ liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (FelCor Lodging Trust Inc), Loan Agreement (FelCor Lodging Trust Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the ~~Properties~~Property, Borrower, ~~Mortgage Borrower,~~ Manager and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company)~~ Loan (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ Nomura (whether or not it is ~~the~~ Lender), any Affiliate of ~~JPM or a Noteholder~~ Nomura that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Nomura that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other ~~co-~~co underwriters, ~~co-~~co placement agents or ~~co-~~co initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior written consent of ~~the Indemnified Person in question~~ Nomura (which consent shall not be unreasonably withheld, conditioned or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Nomura reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)

Securitization Indemnification. (a) Borrower ~~understands~~ and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower ~~agrees~~ and Borrower Principal agree to ~~provide,~~ provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Securitization~~Property and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification ~~agreement~~ certificate (iA) certifying that Borrower and Borrower Principal have examined certain portions of such memorandum or prospectus or other document (~~A) Borrower has carefully examined~~ including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Disclosure Documents~~Property and/or the Loan), ~~including~~as applicable, including without limitation, the sections entitled “~~Risk Factors,” “~~Special Considerations,” and/or “~~Description of the Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” or similar sections, and ~~(B)~~ all sections relating to Borrower, Operating Lessee, Borrower Principal, the Manager, their Affiliates, the Loan, the Loan Documents, any Operating Lease and the Property, and any risks or special considerations relating thereto, and that, to the knowledge of Borrower, such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not ~~misleading~~misleading (any of the foregoing actions by Borrower and/or Borrower Principal, in each case, determined as of the date such information or statement is provided, a “Borrower Misstatement”), (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 13.06, ~~each Noteholder, JPM (whether or not it is~~ Lender hereunder shall include its officers and directors) and the ~~Lender), any~~ Affiliate of ~~JPM or a Noteholder~~ Lender that (i) has filed ~~any~~ the registration ~~statement~~ statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or ~~has acted as the sponsor or depositor in connection with the Securitization~~(ii), ~~any Affiliate of JPM or a Noteholder that acts as~~ an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of ~~their respective officers~~any Issuer Person, ~~directors, partners, employees, representatives, agents and Affiliates~~ and each Person or entity who controls any ~~such~~ Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Issuer Group”), ~~for~~ and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any ~~losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees~~ such Person within the meaning of Section 15 of the Securities Act and ~~expenses for enforcement~~ Section 20 of ~~these obligations~~ the Exchange Act (collectively, the “~~Liabilities~~Underwriter Group”)) for any Losses to which ~~any such Indemnified Person~~ Lender or the Issuer Group may become subject insofar as the Losses arise out of any Borrower Misstatement contained in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or necessary in order to make the statements in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or are based upon any such untrue statement or ~~alleged untrue~~ omission made therein, as of the date such information or statement is provided, in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the memorandum or prospectus or other document (including any ~~material fact contained~~ Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in connection with the ~~Covered Disclosure Information~~ underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to each Individual Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate. (c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 13.06 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 13.06, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 13.06 the ~~defense of such claim or action, Borrower~~ indemnifying party shall ~~not~~ be ~~liable to the Indemnified Person~~ responsible for any reasonable legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ counsel for an indemnified party shall have reasonably concluded that there may be legal defenses available to it its client that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreements provided for in ~~question (which consent shall not~~ Section 13.06(c) or Section 13.06(d) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether~~ indemnifiable under Section 13.06(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.06(d), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower, Borrower Principal and ~~Borrower~~ Lender under this Section ~~9.2~~ 13.06 shall survive the ~~termination~~ satisfaction of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Bon Ton Stores Inc), Loan Agreement (Bon Ton Stores Inc)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "DISCLOSURE Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the ~~“Securities Act”~~"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the ~~“Exchange Act”~~"EXCHANGE ACT"), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. ~~In the event that the~~ Lender shall provide Borrower adequate opportunity to review any such Disclosure Document ~~is required~~ and to ~~be revised prior~~ provide any such comment to ~~the sale of all Securities,~~ Lender as Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessiondeems necessary. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such ~~sections and such other information in the~~ Disclosure Documents ~~(to the extent~~ specified by Lender and that each such ~~information~~ Disclosure Document, as it relates to ~~or includes any Provided Information or any information regarding~~ Borrower, Borrower Affiliates, the Properties, ~~Borrower~~the Property Manager and all other aspects of the Loan, ~~Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do~~ does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~(and for purposes of this SECTION 12.3, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of ~~Section~~ SECTION 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”~~"LENDER GROUP"), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the ~~“Liabilities”)~~"LIABILITIES") to which ~~any such Indemnified Person~~ Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the ~~Covered~~ omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clause (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Information~~ Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, appraisals, market studies, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. (c) In connection with Exchange Act filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (~~iii~~ii) ~~agreeing to~~ reimburse ~~each Indemnified Person~~ Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred, in connection with investigating or defending~~ the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting~~ Group or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question (which consent shall not~~ this Section is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether or not any Indemnified Person is an actual or potential~~ indemnifiable under this Section, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party who is not also found liable for such fraudulent misrepresentation,~~ Person (i) Lender's and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Lender and Borrower ~~agrees~~ hereby agree that ~~in no event shall the amount to~~ it would not be ~~contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ equitable if the amount of ~~the fees (~~such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this ~~Section 9.2~~ SECTION 12.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)

Securitization Indemnification. (a) Each Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to ~~the~~ a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees to provide~~Upon Lender’s reasonable request, Borrowers shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) ~~Borrower has carefully~~ certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the ~~Disclosure Documents, including, without limitation~~Loan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, ~~Borrower~~the IP, ~~Mortgage Borrower~~the First Mezzanine Collateral, the Collateral, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Managers, the ~~“Covered Disclosure Information”) do~~ Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ Credit Suisse (whether or not it is ~~the~~ Lender), any Affiliate of ~~JPM~~ Lender or ~~a Noteholder~~ Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM~~ Lender or ~~a Noteholder~~ Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages~~, liabilities, costs~~ ) or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the ~~Covered Disclosure Information~~ Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements ~~in the Covered Disclosure Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Person in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of~~ Borrowers will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by ~~or on behalf of Borrower~~ Borrowers in connection with the preparation of ~~the~~ any Disclosure ~~Documents~~ Document(s) or in connection with the underwriting or ~~the~~ closing of the Loan ~~(including~~ or in the ordinary course of the Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an a separate indemnification agreement ~~described in clause (i) above~~ is provided. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, ~~Borrower agrees to indemnify~~ Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified ~~Person~~ Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the ~~Covered Disclosure Information~~Loan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in ~~the Covered~~ any such Disclosure ~~Information~~ Document a material fact in any Loan Party’s actual knowledge, required to be stated ~~therein or necessary~~ in such Disclosure Document in order to make the statements in ~~the Covered~~ such Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified ~~Persons, as they are incurred,~~ Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties. (d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of ~~any claim or~~ the commencement of any action, ~~the~~ such Indemnified Person ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrowers under this Section 9.3, notify ~~Borrower~~ Borrowers in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that the failure~~ omission to so notify ~~Borrower shall~~ Borrowers will not relieve it any Borrower from any liability which it any Borrower may have ~~under the indemnification provisions of this Section 9.2~~ to any Indemnified Person hereunder except to the extent that ~~it has been materially prejudiced by~~ such ~~failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes material prejudice to any ~~liability which it may have to an Indemnified Person otherwise than under~~ Borrower. In the ~~provisions of this Section 9.2. If~~ event that any ~~such claim or~~ action ~~shall be~~ is brought against an any Indemnified Person, and it ~~shall notify Borrower~~ notifies Borrowers of the commencement thereof, ~~Borrower shall~~ Borrowers will be entitled to participate therein and, to the extent that ~~it wishes~~they may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to ~~the~~ such Indemnified Person. After notice from ~~any Borrower~~ Borrowers to an such Indemnified Person ~~of its election to assume the defense of~~ under this Section 9.3, such ~~claim or action, Borrower shall not be liable to the~~ Indemnified Person shall pay for any legal or other expenses subsequently incurred by ~~the~~ such Indemnified Person in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ Indemnified Person and ~~one or more Indemnified Persons on~~ any Borrower and the ~~other hand, and an~~ Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or ~~in addition~~ additional to those available to ~~Borrower~~Borrowers, the Indemnified ~~Person or Persons~~ Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified ~~Person or Persons~~Person(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such~~ any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ Credit Suisse or Lender, as applicable (which consent shall not be unreasonably withheld), no Borrower shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ Borrowers shall have given ~~such Indemnified Person~~ Credit Suisse or Lender, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceeding. As long as ~~Borrower has~~ Borrowers have complied with ~~its~~ their obligations to defend and indemnify hereunder, ~~Borrower~~ Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ Borrowers (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section ~~9.2~~ 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section ~~9.2~~9.3), then ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of ~~Borrower~~Borrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section ~~9.2~~9.3, ~~(A)~~ no ~~party~~ Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other ~~party~~ Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ Borrowers further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~9.3. (h) ~~The~~ Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of ~~the Indemnified Persons~~ Borrowers and ~~Borrower~~ Lender under this Section ~~9.2~~ 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 2 contracts

Samples: Mezzanine Loan Agreement (Morgans Hotel Group Co.), Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)

Appears in 2 contracts

Samples: Loan Agreement (Urban Shopping Centers Inc), Loan Agreement (Urban Shopping Centers Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities ~~Act of 1933, as amended (the “Securities~~ Act”), or ~~the Securities and~~ Exchange Act ~~of 1934, as amended (the “Exchange Act”),~~ or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Covered Disclosure ~~Document~~ Information by providing all current information necessary to keep the Covered Disclosure ~~Document~~ Information accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) ~~Borrower has carefully examined~~ the Indemnifying Persons have, at Lender’s request in connection with each Securitization, reviewed the sections of the Disclosure ~~Documents, including, without limitation, the sections~~ Documents entitled “Risk Factors,” (solely to the extent the “Risk Factors” relate to Borrower, Guarantor, Operating Lessee, the Management Agreement and the Properties), “Special Considerations,” “Description of the ~~Collateral~~Mortgage,” “Description of the ~~Mezzanine Loans~~Mortgage Loan and Mortgaged Property,” “Description of the Borrower,” “Description of Operating Lessee”, “Description of Operating Lease”, “Description of the Property Manager, Management Agreement and Subordination, Non-Disturbance and Attornment Agreements”, “The Manager”, “The Operating ~~Company,~~Lessee” and “The Borrower” and “~~Certain Legal Aspects~~ Annex E – Representations and Warranties of the ~~Mezzanine Loans,~~Borrowers” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”), in each case, solely to the extent relating to the collateral for the Loan, Borrower, Operating Lessee, Guarantor or a Manager, and (ii) do the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying ~~Lender, each Noteholder, JPM (whether or not it is~~ the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified ~~Persons”),~~ Persons for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (~~iii~~C) above shall be ~~effective~~ effective, valid and binding obligations of Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior written consent of ~~the Indemnified Person in question~~ Lender or its designee (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Indemnified Persons in connection with the closing of the Loan ~~or the~~ and Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Park Hotels & Resorts Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the ~~Properties~~Property, Borrower, ~~Mortgage Borrower,~~ Manager and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ CSFB (whether or not it is the Lender), any Affiliate of ~~JPM or a Noteholder~~ CSFB that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ CSFB that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Fairchild Corp)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will reasonably cooperate with the holder of the Note in updating the Disclosure Document by providing all current available information or otherwise required under the Loan Documents necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Upon Lender’s request, Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower has carefully examined ~~the Disclosure Documents~~such memorandum or prospectus, ~~including~~as applicable, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (specifically pertaining to ~~the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage~~ Borrower, the ~~Collateral~~Property and/or the Loan, ~~the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”)~~ and that such portions do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) ~~indemnifying Lender~~indemnifying, ~~each Noteholder, JPM~~ with respect to the final private placement memorandum or final prospectus (~~whether~~ or ~~not it is~~ the ~~Lender~~final private placement memorandum or final prospectus as supplemented), ~~any~~ as applicable, Lender (and for purposes of this Section 9.2, Lender hereunder shall include its officers and directors), the Affiliate of ~~JPM or a Noteholder~~ Greenwich Capital Markets, Inc. (“Greenwich”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person or entity who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Greenwich Group”), and Greenwich, each of its directors and each Person who controls Greenwich within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages~~damages or liabilities but excluding any lost profits, ~~liabilities, costs or expenses (including, without limitation, legal fees~~ diminution in value and ~~expenses for enforcement of these obligations~~ consequential damages (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Greenwich Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information~~ portions of the disclosure document specifically pertaining to Borrower, the Property and/or the Loan (provided such portions have been reviewed and approved by Borrower) or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections (provided Borrower has examined and approved such portions) or necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Greenwich Group and the Underwriter Group for any reasonable legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender and Greenwich in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information~~ will be liable only to the extent that any such ~~Liabilities arise~~ loss, claim, damage or liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ debt, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the ~~Properties), and~~ Property (except that (x) Borrower’s obligations to indemnify in ~~no event shall Borrower be liable for Liabilities arising from~~ respect of any information contained in a ~~Disclosure Document~~ preliminary or final private placement memorandum or a preliminary or final prospectus that ~~was not~~ is derived in part from information provided by Borrower and in part from information provided by others, Borrower’s indemnification shall be limited to any untrue statement or alleged untrue statement therein or omission therefrom that results from information provided by Borrower ~~for comment at least five (5) Business Days prior to its dissemination or on~~ which Borrower ~~provided comments~~ has been given an opportunity to examine and approve, and (y) Borrower shall have no responsibility for the failure of Lender ~~in writing and Lender failed~~ (or its agents) to ~~incorporate such comments (assuming such comments were accurate~~accurately transcribe written information supplied by Borrower). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate. It is agreed that Lender shall specify the information in the aforementioned memorandum or prospectus covered by such certificate. In addition, it is agreed that such certificate may state that it expresses no conclusion, with respect to a prospectus required to be filed with the U.S. Securities and Exchange Commission (“SEC”), as to the necessity of including information in such prospectus or the proper presentation of any information included therein to comply with the technical requirements imposed by regulation or SEC staff interpretations under the Securities Act relating to the information required to be included by the form of the registration statement to be filed. Notwithstanding anything to the contrary in this Section 9.2, the indemnity, reimbursement and contribution obligations set forth in this Section 9.2 with respect to any preliminary private placement memorandum or preliminary prospectus shall not inure to the benefit of Lender, the Greenwich Group or the Underwriter Group (the “Indemnified Member”) if the Person asserting any such loss, claim, damage or liability purchased any of the Securities which are the subject thereof and did not receive a copy of the final private placement memorandum or final prospectus (or the final private placement memorandum or final prospectus as supplemented) at or prior to the confirmation of the sale of such Securities to such person in any case where such delivery is required and the untrue statement or omission of a material fact contained in such preliminary private placement memorandum or preliminary prospectus was corrected in the final private placement memorandum or final prospectus (or the final private placement memorandum or final prospectus as supplemented). (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower agrees to indemnify (i) Lender, the ~~Indemnified Persons~~ Greenwich Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Greenwich Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information (which is used in such filing and which Borrower has had an opportunity to examine and approve) a material fact required to be stated ~~therein or necessary~~ in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Greenwich Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Greenwich Group or the Underwriter Group in connection with defending or investigating the ~~Liabilities~~Liabilities only in the event that it shall be determined that there was such an omission. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party and shall have the right to negotiate and enter into and/or consent to any settlement, subject to the prior approval of Lender and, if different, the Indemnified ~~Person~~Member, which approval shall not be unreasonably withheld provided that such approval is not required in connection with any settlement which includes any unconditional release of all Indemnified Members involved in such action and all related actions for all liability for which such parties are seeking indemnification and there is no admission of wrongdoing on the part of any Indemnified Member. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall not be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party. If Borrower has assumed the defense of any action brought against any Indemnified ~~Person. (e) Without~~ Member, then such Indemnified Member shall not settle such action without the ~~prior~~ consent of ~~the Indemnified Person in question (~~Borrower, which consent shall not be unreasonably withheld). Notwithstanding the foregoing, ~~Borrower~~ the indemnifying party shall not ~~settle~~ be responsible for defending any action in which a final determination is made concluding that there was such an omission. (e) In order to provide for just and equitable contribution in circumstances in which the indemnity agreements provided for in Section 9.2(b) or ~~compromise~~ (c) is or ~~consent~~ are for any reason held to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ be unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (~~whether or not any Indemnified Person is an actual or potential~~ c) the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 1l(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Greenwich’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Pebblebrook Hotel Trust)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities ~~and~~ Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, ~~including,~~ including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, ~~Mortgage Borrower,~~ Manager and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ BSCMI (whether or not it is the Lender), any Affiliate of ~~JPM or a Noteholder~~ BSCMI that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ BSCMI that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, 143 in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (~~iii~~C) above shall be ~~effective~~ effective, valid and binding obligations of the Indemnifying Persons whether or not an indemnification agreement described in clause (iA) above is provided. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that 144 there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior written consent of ~~the Indemnified Person in question~~ BSCMI (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ BSCMI reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Indemnified Persons in connection with the closing of the ~~Loan or the Securitization~~Loan. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Building Loan Agreement (Acadia Realty Trust)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to ~~investors~~ Investors or prospective ~~investors~~ Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, solely with respect to the ~~Disclosure Documents~~factual contents thereof related to the Loan, the Mezzanine Loan, Borrower, Mezzanine Borrower, Guarantor, Manager, the Property, the collateral for the Mezzanine Loan and the Provided Information, including, without limitation, the sections entitled “~~Risk Factors,” “~~Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and ~~(B)~~ such sections (and ~~such~~ any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender (“Citigroup”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity~~ who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Citigroup Group”), and Citigroup, each of its directors and each Person who controls Citigroup within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above (but solely with respect to the ~~Covered Disclosure Information~~ factual contents thereof relating to the Loan, the Mezzanine Loan, Borrower, Mezzanine Borrower, Guarantor, Manager, the Property, the collateral for the Mezzanine Loan and the Provided Information), or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections (as they relate to such matters) or necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Citigroup Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender the Citigroup Group and the Underwriter Group in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ Liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ debt, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This ~~indemnity agreement~~ indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower agrees to indemnify (i) Lender, the ~~Indemnified Persons~~ Citigroup Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Citigroup Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Citigroup Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall not be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnifications provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Citigroup’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined solely by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (gf) ~~Borrower agrees that~~ Notwithstanding anything to the ~~indemnification~~contrary contained in this Section 9.2, ~~contribution and reimbursement obligations set forth~~ nothing contained in this Section 9.2 shall ~~apply whether~~ impose liability upon Borrower for any losses, claims, damages or liability arising out of or based upon an untrue statement of any material fact contained in any statement, report or document provided to Lender on behalf of Borrower by a party who is not ~~any Indemnified Person is~~ an Affiliate of Borrower (a ~~formal party~~ “Third Party Report”), unless Borrower had actual knowledge at the time Borrower provided such statement, report or document to ~~any lawsuits, claims or other proceedings. Borrower further agrees~~ Lender that ~~the Indemnified Persons are intended third party beneficiaries under this Section 9.2~~such Third Party Report contains such untrue statement. (hg) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to ~~investors~~ Investors or prospective ~~investors~~ Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Provided Information in the Disclosure Document by providing all current information necessary to keep the Provided Information in the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, as it relates to the ~~Disclosure Documents~~Provided Information or the descriptions of the Properties, ~~including~~Borrower, Guarantor, the Manager, Principal or any Affiliates thereof contained therein, including without limitation, the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and ~~(B)~~ such sections (and ~~such~~ any other ~~information in the Disclosure Documents (~~sections reasonably requested), to the extent ~~such information relates~~ they relate to ~~or includes any~~ the Provided Information or ~~any information regarding~~ the descriptions of the Properties, Borrower, ~~Mortgage Borrower~~Guarantor, the ~~Collateral~~Manager, ~~the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Principal or any Affiliates thereof, ~~the “Covered Disclosure Information”)~~ do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not ~~misleading~~misleading in any material respect, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Bank of America, N.A. (“Bank of America”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity~~ who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Bank of America”), and Bank of America, each of its directors and each Person who controls Bank of America within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Bank of America Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above, to the ~~Covered Disclosure~~ extent they relate to the Provided Information or the descriptions of the Properties, Borrower, Guarantor, the Principal, Manager or any Affiliate thereof or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading in any material respect, to the extent they relate to the Provided Information or the descriptions of the Properties, Borrower, Guarantor, the Principal, Manager or any Affiliate thereof and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Bank of America Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender the Bank of America Group and the Underwriter Group in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ Liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ debt, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This ~~indemnity agreement~~ indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in ~~clauses~~ Clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower agrees to indemnify (i) Lender, the ~~Indemnified Persons~~ Bank of America Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Bank of America Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading in any material respect and (ii) reimburse ~~each Indemnified Person~~ Lender, the Bank of America Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Bank of America Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall not be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnifications provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Bank of America’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined solely by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (ig) Notwithstanding anything contained in this Section 9.2 to the ~~contrary contained herein~~contrary, ~~Borrower~~ the aggregate amount of Borrower’s liability or obligation for all claims hereunder shall ~~have no obligation to act as depositor with respect to~~ not exceed the original Loan ~~or an issuer or registrant with respect to the Securities issued in any Securitization~~Amount.

Appears in 1 contract

Samples: Loan Agreement (FelCor Lodging Trust Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the ~~Note~~ Note, in all reasonable respects and at the holder of the Note's expense, in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ Borrower, Principal and Guarantor agree to ~~provide,~~ provide in connection with each of (i) a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus or prospectus supplement, (iii) such other offering materials as may be used for the ~~Securitization~~securitization of the Loan (such materials described in clause (i), (ii) or (iii), as applicable, being hereinafter referred to collectively as the "Offering Materials"), an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A) Borrower~~ Borrower, Principal and Guarantor, as applicable, has carefully examined the ~~Disclosure Documents~~portions of, and only the portions of, the Offering Materials relating to Borrower, Manager, the Properties, Guarantor and Principal specifically, including, without limitation, the sections entitled ~~“Risk Factors,” “Special Considerations,” “~~"Description of the ~~Collateral~~Mortgage Loans and Mortgaged Property,~~” “Description of the Mezzanine Loans,” “~~" "The ~~Operating Company,” “~~Manager" and "The Borrower~~” and “Certain Legal Aspects of~~ " (collectively, the ~~Mezzanine Loans,” and (B) such sections~~ "Borrower Sections"), and such ~~other information in the Disclosure Documents (to the extent such information relates~~ Borrower Sections as they relate to or ~~includes~~ include any Provided ~~Information or any information regarding~~ Information, and as they relate to the Properties, ~~Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”)~~ do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender ("Credit Suisse First Boston") that has filed ~~any~~ the registration statement relating to the ~~Securitization or has acted as~~ securitization (the ~~sponsor or depositor in connection with the Securitization~~"Registration Statement"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person or entity who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”~~"Credit Suisse First Boston Group"), and Credit Suisse First Boston, each of its directors and each Person who controls Credit Suisse First Boston within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "Underwriter Group") for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “"Liabilities”)") to which ~~any such Indemnified Person~~ Credit Suisse First Boston, the Credit Suisse First Boston Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in ~~the Covered Disclosure Information~~ such Borrower Sections or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such Borrower Sections or in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Credit Suisse First Boston Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender and Credit Suisse First Boston in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clause (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ loss claim, damage or liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ debt, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided. (c) In connection with filings under the Exchange Act (~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if ~~any),~~ Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, does not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under provide the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personcertificate. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Koger Equity Inc)

Securitization Indemnification. (a) Each Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to ~~the~~ a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees to provide~~Upon Lender’s reasonable request, Borrowers shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) ~~Borrower has carefully~~ certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the ~~Disclosure Documents, including, without limitation~~Loan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, ~~Borrower~~the IP, ~~Mortgage Borrower~~the First Mezzanine Collateral, the Collateral, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Managers, the ~~“Covered Disclosure Information”) do~~ Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying ~~Lender, each Noteholder, JPM (whether~~ Lender or ~~not it is the Lender),~~ any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages~~, liabilities, costs~~ ) or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the ~~Covered Disclosure Information~~ Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements ~~in the Covered Disclosure Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Person in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of~~ Borrowers will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by ~~or on behalf of Borrower~~ Borrowers in connection with the preparation of ~~the~~ any Disclosure ~~Documents~~ Document(s) or in connection with the underwriting or ~~the~~ closing of the Loan ~~(including~~ or in the ordinary course of the Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an a separate indemnification agreement ~~described in clause (i) above~~ is provided. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, ~~Borrower agrees to indemnify~~ Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified ~~Person~~ Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the ~~Covered Disclosure Information~~Loan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in ~~the Covered~~ any such Disclosure ~~Information~~ Document a material fact in any Loan Party’s actual knowledge, required to be stated ~~therein or necessary~~ in such Disclosure Document in order to make the statements in ~~the Covered~~ such Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified ~~Persons, as they are incurred,~~ Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties. (d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of ~~any claim or~~ the commencement of any action, ~~the~~ such Indemnified Person ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrowers under this Section 9.3, notify ~~Borrower~~ Borrowers in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that the failure~~ omission to so notify ~~Borrower shall~~ Borrowers will not relieve it any Borrower from any liability which it any Borrower may have ~~under the indemnification provisions of this Section 9.2~~ to any Indemnified Person hereunder except to the extent that ~~it has been materially prejudiced by~~ such ~~failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes material prejudice to any ~~liability which it may have to an Indemnified Person otherwise than under~~ Borrower. In the ~~provisions of this Section 9.2. If~~ event that any ~~such claim or~~ action ~~shall be~~ is brought against an any Indemnified Person, and it ~~shall notify Borrower~~ notifies Borrowers of the commencement thereof, ~~Borrower shall~~ Borrowers will be entitled to participate therein and, to the extent that ~~it wishes~~they may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to ~~the~~ such Indemnified Person. After notice from ~~any Borrower~~ Borrowers to an such Indemnified Person ~~of its election to assume the defense of~~ under this Section 9.3, such ~~claim or action, Borrower shall not be liable to the~~ Indemnified Person shall pay for any legal or other expenses subsequently incurred by ~~the~~ such Indemnified Person in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ Indemnified Person and ~~one or more Indemnified Persons on~~ any Borrower and the ~~other hand, and an~~ Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or ~~in addition~~ additional to those available to ~~Borrower~~Borrowers, the Indemnified ~~Person or Persons~~ Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified ~~Person or Persons~~Person(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such~~ any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ Lender, (which consent shall not be unreasonably withheld), no Borrower shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ Borrowers shall have given ~~such Indemnified Person~~ Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceeding. As long as ~~Borrower has~~ Borrowers have complied with ~~its~~ their obligations to defend and indemnify hereunder, ~~Borrower~~ Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ Borrowers (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section ~~9.2~~ 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section ~~9.2~~9.3), then ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of ~~Borrower~~Borrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section ~~9.2~~9.3, ~~(A)~~ no ~~party~~ Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other ~~party~~ Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ Borrowers further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~9.3. (h) ~~The~~ Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of ~~the Indemnified Persons~~ Borrowers and ~~Borrower~~ Lender under this Section ~~9.2~~ 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined the ~~Disclosure Documents, including, without limitation, the~~ sections ~~entitled “Risk Factors,” “Special Considerations,” “Description~~ of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (delivered by Lender to ~~the extent such information relates~~ Borrower relating solely to ~~or includes any Provided Information or any information regarding the Properties,~~ Borrower, ~~Mortgage Borrower~~Borrower Affiliates, the ~~Collateral~~Property, and the ~~Senior Mezzanine Collateral and/or Operating Company)~~ Manager (~~collectively with the Provided Information,~~ the “~~Covered Disclosure Information~~Specified Sections”) ), and that such Specified Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not ~~misleading~~misleading or specifying such untrue statement (it being agreed that Borrower shall not be required to review any other sections of the Disclosure Document other than the Specified Sections), (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Xxxxxx Brothers Inc. (“Xxxxxx Brothers”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Xxxxxx Brothers Group”), Xxxxxx Brothers, any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Xxxxxx Brothers or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Brothers Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in ~~the Covered Disclosure Information~~ such Specified Sections or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information~~such Specified Sections, in light of the circumstances under which they were made, not misleading (it being agreed that Borrower shall not be responsible for any losses which would not have been suffered if Lender had corrected any statements contained in the Specified Sections identified by Borrower in writing to have been untrue or misleading) and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Brothers Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred,~~ the Xxxxxx Brothers Group and the Underwriter Group in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ loss, claim, damage or liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ in its capacity as “lender” hereunder by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Documents~~ Document or in connection with the underwriting or ~~the~~ closing of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Borrower, operating statements and rent rolls with respect to the ~~Properties)~~Property and provided further, ~~and~~ however, that with respect to statements made in ~~no event shall~~ such Specified Sections that are based upon information provided by third parties, Borrower will be liable ~~for Liabilities arising from~~ only if Borrower knew that such information ~~contained in~~ was false or omitted to state a ~~Disclosure Document that was not provided~~ material fact known to Borrower ~~for comment at least five (5) Business Days prior~~ and necessary in order to ~~its dissemination or on~~ make the statements made, in light of the circumstances under which ~~Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments~~ they were ~~accurate)~~made, not misleading. This indemnity agreement will be in addition to any liability which Borrower may otherwise have~~. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided~~. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Behringer Harvard Reit I Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities ~~Act of 1933, as amended (the “Securities~~ Act”), or ~~the Securities and~~ Exchange Act ~~of 1934, as amended (the “Exchange Act”),~~ or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Covered Disclosure ~~Document~~ Information by providing all current information necessary to keep the Covered Disclosure ~~Document~~ Information accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) ~~Borrower has carefully examined~~ the Indemnifying Persons have, at Lender’s request in connection with each Securitization, reviewed the sections of the Disclosure ~~Documents, including, without limitation, the sections~~ Documents entitled “Risk Factors,” (solely to the extent the “Risk Factors” relate to Borrower, Operating Lessee, Guarantor, Manager, IP Collateral, the Management Agreement, the North Beach Property, the North Beach Property Documents, any Rental Management Program, any Mezzanine Borrower and the Property), “Special Considerations,” “Description of the ~~Collateral~~Mortgage,” “Description of the Mortgage Loan and Mortgaged Property,” “Description of the Borrower,” “Description of the Operating Lease and Operating Lessee,” “Description of the Property Manager, Management Agreement and Assignment and Subordination of Management Agreement”, “Description of the Intellectual Property,” “Description of the Mezzanine ~~Loans~~Loan”, “Annex E – Representations and Warranties of the Borrowers”, “Certain Legal Aspects of the Mortgage Loan,~~” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (ii) the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender~~, each Noteholder, JPM (whether or not it is the Lender)~~, any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (~~iii~~C) above shall be ~~effective~~ effective, valid and binding obligations of Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior written consent of ~~the Indemnified Person in question~~ Lender or its designee (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Indemnified Persons in connection with the closing of the Loan ~~or the~~ and Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Strategic Hotels & Resorts, Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, ~~Mortgage Borrower,~~ Manager and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company)~~ Loan (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ Nomura (whether or not it is ~~the~~ Lender), any Affiliate of ~~JPM or a Noteholder~~ Nomura that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Nomura that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other ~~co-~~co underwriters, ~~co-~~co placement agents or ~~co-~~co initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior written consent of ~~the Indemnified Person in question~~ Nomura (which consent shall not be unreasonably withheld, conditioned or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Nomura reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Thomas Properties Group Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in any Disclosure ~~Documents in connection with the Securitization~~ Document and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects~~ respects. Lender hereby acknowledges and agrees that, except to the extent required by law, Lender shall not include information with respect to Sponsor’s organizational documents or financial statements in ~~Borrower’s possession~~the Disclosure Document. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final offering memorandum or private placement memorandum or similar document (~~A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled~~ including any Investor or Rating Agency “~~Risk Factors,~~term sheets” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (or presentations relating to the ~~extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower~~Property, the Collateral, the Other Senior Mezzanine Collateral and/or ~~Operating Company~~the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) certifying that Borrower has carefully examined that portion of such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property, the Collateral, the Other Senior Mezzanine Collateral and/or the Loan), as applicable, containing all sections relating to Borrower, the Other Senior Mezzanine Borrower, Mortgage Loan Borrower, Maryland Owner, Affiliates of Borrower and Sponsor, the Loan, the Loan Documents, each Individual Property and to Borrower’s knowledge the Manager and any Franchisor, and any risks or special considerations relating thereto (but not including risks relating to local or federal law) (~~collectively with the Provided Information,~~ the “Covered Disclosure Information”), and that, to Borrower’s knowledge, such Covered Disclosure Information (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying ~~Lender~~Lender (and for purposes of this Section 13.6, ~~each Noteholder, JPM (whether or not it is~~ Lender hereunder shall include its officers and directors) and the ~~Lender), any~~ Affiliate of ~~JPM or a Noteholder~~ Lender that (i) has filed ~~any~~ the registration ~~statement~~ statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in clauses (i) or ~~has acted as the sponsor or depositor in connection with the Securitization~~(ii), ~~any Affiliate of JPM or a Noteholder that acts as~~ an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of ~~their respective officers~~any Issuer Person, ~~directors, partners, employees, representatives, agents and Affiliates~~ and each Person or entity who controls any ~~such~~ Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Issuer Group”), ~~for~~ and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any ~~losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees~~ such Person within the meaning of Section 15 of the Securities Act and ~~expenses for enforcement~~ Section 20 of ~~these obligations~~ the Exchange Act (collectively, the “~~Liabilities~~Underwriter Group”)) for any Liabilities to which ~~any such Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in ~~the~~ such Covered Disclosure Information (including any Investor or Rating Agency “term sheets” or presentations relating to the Property, the Other Senior Mezzanine Collateral, the Collateral and/or the Loan) or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such Covered Disclosure Information (including any Investor or Rating Agency “term sheets” or presentations relating to the Property, the Collateral and/or the Loan) or necessary in order to make the statements in ~~the~~ such Covered Disclosure ~~Information~~Information (including any Investor or Rating Agency “term sheets” or presentations relating to the Property, the Senior Mezzanine Collateral and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender and Issuer Group in connection with investigating or defending the ~~Liabilities~~ Securities Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such Securities Liabilities arise out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender or ~~such Noteholder~~ any member of the Issuer Group or Underwriter Group by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property, the Collateral, the Other Senior Mezzanine Collateral and/or the Loan) or in connection with the underwriting ~~or the closing~~ of the ~~Loan (~~Loan, including ~~without limitation~~ financial statements of Borrower or Sponsor, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ Property condition reports with respect to each Individual Property and further provided that in the ~~Properties)~~reasonable judgment of Borrower, these obligations (other than the indemnity obligations) under this Section 13.6 do not increase Borrower’s obligations and liabilities under the Loan Documents except as set forth herein. Notwithstanding anything to the contrary contained herein or in ~~no event shall Borrower be liable for Liabilities arising from~~ any indemnification agreement, (x) Borrower’s obligation to indemnify in respect of any information contained in a any Disclosure Document that ~~was~~ is derived in part from information provided by Borrower and in part from information provided by others unrelated to or not ~~provided~~ employed by Borrower shall be limited to ~~Borrower for comment at least five (5) Business Days prior to its dissemination~~ any untrue statement or on omission of material fact in the Covered Disclosure Information which Borrower ~~provided comments~~ has been given the opportunity to ~~Lender~~ examine and has reasonably approved, and (y) Borrower shall not have any responsibility for the failure of any member of the Underwriter Group to accurately transcribe written information supplied by Borrower or to include such portions of the Covered Disclosure Information in ~~writing and Lender failed to incorporate such comments (assuming such comments were accurate)~~any Disclosure Document. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate. (c) In connection with filings under the Exchange Act ~~(if any)~~or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the ~~Indemnified Persons~~ Issuer Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 13.6 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person~~ such indemnified party shall, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 13.6, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower~~ indemnifying party shall not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower~~ the indemnifying party shall be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 13.6 the ~~defense of such claim or action, Borrower~~ indemnifying party shall ~~not~~ be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person shall have~~ the indemnified party has reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person shall have~~ an indemnified party has reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreements provided for in ~~question (which consent shall not~~ Section 13.6(c) or Section 13.6(d) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether~~ indemnifiable under Section 13.6(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.6(d), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower and ~~Borrower~~ Lender under this Section ~~9.2~~ 13.6 shall survive the ~~termination~~ satisfaction of this Agreement and the satisfaction and discharge of the Debt. (ig) ~~Notwithstanding anything to the contrary contained herein~~THE INDEMNIFICATION PROVISIONS PROVIDED IN THIS SECTION 13.6 SHALL APPLY REGARDLESS OF WHETHER THE ACT, ~~Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization~~OMISSION, FACTS, CIRCUMSTANCES OR CONDITIONS GIVING RISE TO SUCH INDEMNIFICATION WERE CAUSED IN WHOLE OR IN PART BY LENDER’S SIMPLE (BUT NOT GROSS) NEGLIGENCE, PROVIDED THAT THE FOREGOING STATEMENT SHALL NOT LIMIT THE PROVISIONS OF SECTION 13.6(B)(X) OR (Y) HEREOF.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the ~~Disclosure Documents, including, without limitation,~~ Provided Information included within the sections of the Disclosure Documents entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine ~~Loans~~Loan,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine ~~Loans~~Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided ~~Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Information) (~~collectively with the Provided Information,~~ the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, ~~each Noteholder, JPM~~ JPMorgan (whether or not it is the Lender), any Affiliate of ~~JPM or a Noteholder~~ JPMorgan that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ JPMorgan that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement ~~or alleged untrue statement~~ of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the ~~omission or alleged~~ omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities; provided, however, that Borrower shall not be liable for any omission of a material fact if information containing such material fact is provided in writing to Lender and designated by Borrower in writing for inclusion in a Disclosure Document but is not actually included in such Disclosure Document. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ JPMorgan (which consent shall not be unreasonably withheld), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ JPMorgan reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Highland Hospitality Corp)

Securitization Indemnification. (a) ~~Borrower~~ Pledgor understands that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to ~~investors~~ Investors or prospective ~~investors~~ Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ Pledgor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information reasonably necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower~~ Pledgor agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A) Borrower~~ Pledgor has carefully examined the ~~Disclosure Documents, including, without limitation~~portions of such memorandum or prospectus or term sheets identified by Lender that relate to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties~~, Borrower, Mortgage Borrower~~, the Collateral, the ~~Senior~~ Mezzanine ~~Collateral and/or Operating Company) (collectively with the Provided Information~~A Collateral, the ~~“Covered Disclosure Information”)~~ Mezzanine B Collateral, the Mezzanine C Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, Mezzanine C Borrower, Mezzanine C Principal, any Affiliated Manager and Guarantor and that such sections do not contain any untrue statement of a material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, the Mezzanine C Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, Mezzanine C Borrower, Mezzanine C Principal, any Affiliated Manager and Guarantor or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender (“Citigroup”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity~~ who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Citigroup Group”), and Citigroup, each of its directors and each Person who controls Citigroup within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, the Mezzanine C Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, Mezzanine C Borrower, Mezzanine C Principal, any Affiliated Manager and Guarantor contained in such sections described in clause (A) above, or arise out of or are based upon the ~~Covered Disclosure Information~~ omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, the Mezzanine C Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, Mezzanine C Borrower, Mezzanine C Principal, any Affiliated Manager and Guarantor or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Citigroup Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender the Citigroup Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Pledgor will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Pledgor or its Affiliates in connection with the preparation of the memorandum or prospectus or in connection with the underwriting of the debt, including, without limitation, financial statements of Pledgor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnification will be in addition to any liability which Pledgor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Pledgor or its Affiliates if Pledgor does not provide the indemnification certificate. (c) In connection with filings under the Exchange Act, Pledgor agrees to indemnify (i) Lender, the Citigroup Group and the Underwriter Group for Liabilities to which Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, the Mezzanine C Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, Mezzanine C Borrower, Mezzanine C Principal, any Affiliated Manager or Guarantor required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Citigroup Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Citigroup Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall not be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnifications provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Citigroup’s and Pledgor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Pledgor hereby agree that it would not be equitable if the amount of such contribution were determined solely by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Pledgor and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will reasonably cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, ~~Mortgage Borrower,~~ Manager and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender~~, each Noteholder~~, JPM (whether or not it is the Lender), any Affiliate of JPM ~~or a Noteholder~~ that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM ~~or a Noteholder~~ that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any actual losses, claims, damages, liabilities, costs or expenses (including, without limitation, reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person ~~may become~~ becomes subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have~~. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided~~. (c) In connection with ~~filings under~~ any filing pursuant to the Exchange Act ~~(if any)~~in connection with or relating to a Securitization, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person ~~may become~~ becomes subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for reasonable fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than ~~one~~ one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person ~~in question~~ (which consent shall not be unreasonably withheld), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such~~ the Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Sabre Corp)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, ~~including,~~ including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine ~~Loans~~Loan,” “Mortgage Borrower,” “Description of the Mortgage Loan and Mortgaged Properties,” and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Collateral, the Mezzanine Collateral, the Mortgage Collateral, the Properties, Borrower, Mezzanine Borrower, Mortgage Borrower, Manager and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ BSCMI (whether or not it is the Lender), any Affiliate of ~~JPM or a Noteholder~~ BSCMI that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ BSCMI that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (~~iii~~C) above shall be ~~effective~~ effective, valid and binding obligations of the Indemnifying Persons whether or not an indemnification agreement described in clause (iA) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to ~~indemnify~~ (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior written consent of ~~the Indemnified Person in question~~ BSCMI (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ BSCMI reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xii) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Indemnified Persons in connection with the closing of the ~~Loan or the Securitization~~Loan. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Junior Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will ~~cooperate~~ cooperate, and cause IDOT Guarantor to cooperate, with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the ~~Disclosure Documents~~Provided Information, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” to the extent that Provided Information is expressly stated therein and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, ~~Mortgage Borrower~~IDOT Guarantor, Manager, Guarantor and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Loan) as requested by Lender (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ CSFB (whether or not it is ~~the~~ Lender), any Affiliate of ~~JPM or a Noteholder~~ CSFB that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ CSFB that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any reasonable legal or other out-of-pocket expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. Borrower shall not be (A) required to review any Disclosure Document, except those sections specified above; provided, that Lender shall provide copies of the relevant Disclosure Documents with not less than ten (10) days for Borrower to review such documents, (B) responsible for the use made by Lender of the Provided Information in any Disclosure Document or (C) liable for the gross negligence or willful misconduct of any Indemnified Person. Nothing contained herein shall be deemed to impose any liability on Borrower for any untrue statements of material fact or omissions of a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, in any information or reports provided by third parties which Borrower provided and/or relied upon. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any reasonable legal or other out-of-pocket expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless ~~such~~ any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to ~~another Indemnified~~ any Indemnifying Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ CSFB (which consent shall not be unreasonably withheld), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ CSFB reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceeding. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The rights, liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the ~~Debt~~Obligations. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Highland Hospitality Corp)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined ~~the~~ such Disclosure ~~Documents~~Documents specified by Lender and that each such Disclosure Document, ~~including~~as it relates to Borrower, ~~without limitation~~Borrower Affiliates, the ~~sections entitled “Risk Factors,” “Special Considerations,” “Description~~ Property, Manager, Sponsor, Guarantor and all other aspects of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesLoan, ~~Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do~~ does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Xxxxxx Xxxxxxx Mortgage Capital Inc. (“Xxxxxx Xxxxxxx”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Xxxxxx Xxxxxxx Group”)) , and Xxxxxx Xxxxxxx, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Xxxxxx Xxxxxxx or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the ~~Covered~~ omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Xxxxxx Xxxxxxx Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Xxxxxx Xxxxxxx Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Information~~ Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. (c) In connection with Exchange Act Filings, Borrower shall (i) indemnify Lender, the Xxxxxx Xxxxxxx Group and the Underwriter Group for Liabilities to which Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Xxxxxx Xxxxxxx Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section 9.2, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Xxxxxx Xxxxxxx’x and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Chesapeake Lodging Trust)

Securitization Indemnification. (a) Borrower understands that ~~certain~~ information provided to Agent by Borrower and its agents, counsel and representatives relating to Borrower, Guarantor, their respective constituent owners, and the Properties (such information, whether provided pursuant to Section 9.1 above or otherwise in connection with the Loan, collectively, the “Borrower Provided Information”; which “Borrower Provided Information” shall be deemed not to include (i) an untrue statement of any material fact contained in the Borrower Provided Third Party Report, except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Third Party Report that the Borrower Provided Third Party Report contained such untrue statement of material fact and Borrower failed to alert Agent to same, or (ii) an omission of a material fact in the Borrower Provided Third Party Report (which omission shall be deemed material if such fact should have been included in the Borrower Provided Third Party Report in order to make the statements, in light of the circumstances under which they were made, not misleading), except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided ~~Information~~ Third Party Report that the Borrower Provided Third Party Report reflected such omission and Borrower failed to alert Agent to same) may be included in ~~Disclosure Documents~~ preliminary and final disclosure documents in connection with ~~the Securitization~~ any Secondary Market Transaction, including a Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, ~~the Rating Agencies~~investment banking firms, NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to ~~the~~ any Secondary Market Transaction, including a Securitization. ~~In the event~~ Borrower also understands that the ~~Disclosure Document is required to~~ findings and conclusions of any third-party due diligence report obtained by the Agent, the Issuer or the Securitization placement agent or underwriter may be ~~revised prior to~~ made publicly available if required, and in the ~~sale of all Securities~~manner prescribed, ~~Borrower will cooperate with the holder~~ by Section 15E(s)(4)(A) of the ~~Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate~~ Exchange Act and ~~complete in all material respects to the extent in Borrower’s possession~~any rules promulgated thereunder. (b) Borrower hereby agrees to ~~provide~~indemnify Agent (and for purposes of this Section 9.2, ~~in connection with~~ Agent shall include the ~~Securitization~~initial agent, ~~an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents~~initial lenders, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” their successors and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitizationassigns, and ~~each of~~ their respective ~~officers,~~ officers and directors~~, partners, employees, representatives, agents and Affiliates~~ ) and each Person ~~or entity~~ who controls ~~any such Person~~ the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Agent, Lenders, the Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based ~~upon~~ upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information or arise out of or are based upon~~ Borrower Provided Information, (B) the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in the Borrower Provided Information or necessary in order to make the statements in the ~~Covered Disclosure~~ Borrower Provided Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, or (C) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this Agreement (Full and Accurate Disclosure); except, in each case, that (I) Borrower’s obligation to indemnify for any Liabilities that arise in connection with a Disclosure Document that derives in part from information contained in Borrower Provided Information and in part from information either prepared by the Lender Group, the Issuer, the Underwriter Group or any other Person shall be limited to any untrue statement or omission of material fact contained in Borrower Provided Information known to Borrower that results directly from the Borrower Provided Information (or omission from the Borrower Provided Information) and (~~iii~~II) ~~agreeing~~ Borrower shall have no responsibility for (w) any statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to (or requested changes to) in writing to Agent or that were derived from Borrower Provided Third Party Reports, (x) numbers which have been submitted by Borrower and adjusted by any Indemnified Person from those submitted by Borrower, to the extent of such adjustment, (y) third party reports, such as environmental and physical condition reports that do not constitute Borrower Provided Third Party Reports, and (z) any financial projections. Borrower also agrees to reimburse ~~each Indemnified Person~~ Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by ~~such Indemnified Person~~Agent, ~~as they are incurred~~Lenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the ~~Liabilities provided~~Liabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, ~~however~~or is based upon, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in ~~the Covered Disclosure Information in~~ reliance ~~upon~~ upon, and in conformity ~~with~~ with, information furnished to ~~Lender or such Noteholder~~ Agent by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Documents~~ Document or in connection with the underwriting or ~~the~~ closing of the ~~Loan (~~Loan, including ~~without limitation~~ financial statements of ~~Borrower and~~ Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This ~~indemnity agreement~~ indemnification provision will be in addition to any liability which Borrower may otherwise have. ~~Moreover~~Borrower acknowledges and agrees that any Person that is included in the Lender Group, the ~~indemnification provided for in clauses (ii) and (iii) above~~ Issuer and/or the Underwriter Group that is not a direct party to this Agreement shall be ~~effective whether or not an indemnification agreement described in clause (i) above is provided~~deemed to be a third-party beneficiary to this Agreement with respect to this Section 9.2(b). (c) In connection with ~~filings under the~~ any Exchange Act ~~(if any)~~Filing or other reports containing comparable information that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to ~~indemnify~~ (i) indemnify Agent, Lenders, the ~~Indemnified Persons~~ Lender Group, the Issuer and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based ~~upon any~~ upon, an alleged untrue statement or alleged omission or an untrue statement or omission made in reliance upon, and in conformity with, Borrower Provided Information furnished to Agent by or on behalf of ~~any material fact~~ Borrower in connection with the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light preparation of the ~~circumstances under which they were made~~Disclosure Document or in connection with the underwriting or closing of the Loan, ~~not misleading~~ including financial statements of Borrower, operating statements and rent rolls with respect to any Property, and (ii) reimburse ~~each Indemnified Person~~ Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Agent, ~~as they are incurred~~Lenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person~~ such indemnified party pursuant to the immediately preceding sentence of ~~its election to assume the defense of~~ this Section 9.2(d), such ~~claim or action, Borrower~~ indemnifying party shall not ~~be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to ~~another Indemnified Person. (e)~~ any other indemnified party. Without the prior written consent of ~~the Indemnified Person in question~~ Agent (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no indemnifying party shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any ~~Indemnified Person~~ indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the indemnifying party shall have given ~~such Indemnified Person~~ Agent reasonable prior written notice thereof and shall have obtained an unconditional release of each ~~Indemnified Person~~ indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings~~. As long~~ , and such settlement requires no statement as ~~Borrower has complied with its obligations~~ to, or an admission of, fault, culpability or a failure to ~~defend and indemnify hereunder~~act, ~~Borrower shall not be liable for any settlement made~~ by ~~any~~ or on behalf of the Indemnified ~~Person without the consent of Borrower (which consent shall not be unreasonably withheld)~~Party. (fe) ~~Borrower agrees that if any indemnification~~ In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.2(b) or ~~reimbursement sought pursuant to this Section 9.2~~ (c) is ~~finally judicially determined to be unavailable~~ for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or ~~is insufficient~~ action in respect thereof) referred to ~~hold any Indemnified Person harmless~~ therein which would otherwise be indemnifiable under Section 9.2(b) or (~~with respect only to the Liabilities that are the subject of this Section 9.2~~c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the Issuer’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Agent and Borrower ~~agrees~~ hereby agree that in it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. In no event shall Borrower be required to indemnify an indemnified party with respect to any matter to the ~~amount to be contributed by~~ extent arising from the ~~Indemnified Persons collectively pursuant to this paragraph exceed the amount~~ gross negligence or willful misconduct of ~~the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~an indemnified party. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Agent under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Clipper Realty Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, ~~including,~~ including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine ~~Loans~~Loan,” “Mortgage Borrower,” “Description of the Mortgage Loan and Mortgaged Properties,” and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Collateral, the Mortgage Collateral, the Properties, Borrower, Mortgage Borrower, Manager and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ BSCMI (whether or not it is the Lender), any Affiliate of ~~JPM or a Noteholder~~ BSCMI that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ BSCMI that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (~~iii~~C) above shall be ~~effective~~ effective, valid and binding obligations of the Indemnifying Persons whether or not an indemnification agreement described in clause (iA) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to ~~indemnify~~ (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior written consent of ~~the Indemnified Person in question~~ BSCMI (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ BSCMI reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xii) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Indemnified Persons in connection with the closing of the ~~Loan or the Securitization~~Loan. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the ~~Properties~~Property, Borrower, ~~Mortgage Borrower,~~ Manager and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ CSFB (whether or not it is ~~the~~ Lender), any Affiliate of ~~JPM or a Noteholder~~ CSFB that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ CSFB that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless ~~such~~ any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to ~~another Indemnified~~ any Indemnifying Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ CSFB (which consent shall not be unreasonably withheld), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ CSFB reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceeding. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The rights, liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the ~~Debt~~Obligations. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Wyndham International Inc)

Appears in 1 contract

Samples: Loan Agreement (Felcor Lodging Trust Inc)

Securitization Indemnification. (a) Borrower ~~understands that certain of the Provided Information may be included in Disclosure Documents~~ and each guarantor agree, in connection with ~~the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant~~ each Disclosure Document, to ~~the Securities Act of 1933~~provide an indemnification certificate, as ~~amended (the “Securities Act”)~~set forth below, ~~or the Securities and Exchange Act of 1934~~indemnifying Lender, ~~as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities~~any Issuer Person, the ~~Rating Agencies,~~ Issuer Group and/or the Underwriter Group (as those terms are defined below; each an “Indemnified Party” and ~~service providers relating~~ collectively the (“Indemnified Parties”) for any losses to which any Indemnified Party may become subject under the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionconditions set forth below. (b) ~~Borrower agrees to provide, in connection with the Securitization, an~~ The indemnification ~~agreement~~ certificate will provide that (i) ~~certifying that~~ Borrower and each guarantor have carefully examined those sections of the Disclosure Documents relating to the following: (A) Borrower, any SPE Equity Owner, any guarantor, any Property Manager, their respective Affiliates, the Loan and the Mortgaged Property (the “Borrower ~~has carefully examined the Disclosure Documents, including, without limitation,~~ Information”); and (B) the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” and/or “~~Description of the Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” ~~and (B) such~~ or similar sections ~~and such other information in the Disclosure Documents (~~but only to the extent such ~~information relates~~ sections specifically refer to ~~or includes any Provided~~ the Borrower Information ~~or any information regarding~~ (the ~~Properties~~“Borrower Information Sections”). (ii) To the best of such indemnitor’s knowledge, ~~Borrower, Mortgage Borrower,~~ with regard to the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided~~ Borrower Information, the ~~“Covered Disclosure Information”)~~ Borrower Information Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading~~, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is~~ . Notwithstanding the ~~Lender)~~foregoing, any ~~Affiliate~~ indemnification certificate may expressly exclude any information contained in third party reports prepared by parties that are not Affiliates of ~~JPM~~ Borrower or ~~a Noteholder that has filed~~ any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act guarantor (~~collectively, the~~ “~~Indemnified Persons~~Third Party Information”), and the obligations and liability of Borrower and any guarantor pursuant to this Section shall not extend to the Third Party Information. (c) Borrower’s and each guarantor’s agreement to indemnify the Indemnified Parties for any ~~losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”))~~ losses to which any ~~such~~ Indemnified ~~Person~~ Party may become subject ~~insofar as the Liabilities~~ will extend only to such losses that arise out of or are based upon any untrue statement ~~or alleged untrue statement~~ of any material fact contained in the ~~Covered~~ Borrower Information or the Borrower Information Sections of the Disclosure ~~Information~~ Documents or arise out of or are based upon the omission ~~or alleged omission~~ to state in the ~~Covered~~ Borrower Information or the Borrower Information Sections of the Disclosure ~~Information~~ Documents a material fact required to be stated ~~therein or~~ in such sections necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading (collectively, “Securities Liabilities”). (d) Borrower and ~~(iii) agreeing~~ each guarantor agrees to reimburse ~~each~~ any Indemnified ~~Person~~ Party for any legal or other expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Party in ~~connection with~~ investigating or defending the ~~Liabilities provided~~Securities Liabilities. (e) The indemnitors will be liable under clauses (b), ~~however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information~~ (c) and (d) above only to the extent that such Securities Liabilities arise out of of, or are based ~~upon~~ upon, any such untrue statement or omission made in the ~~Covered~~ Disclosure ~~Information~~ Documents in reliance ~~upon~~ upon, and in conformity ~~with information~~ with, Borrower Information furnished to ~~Lender or such Noteholder~~ any Indemnified Party by or on behalf of Borrower or a guarantor in connection with the preparation of the Disclosure Documents or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, any SPE Equity Owner or any guarantor, and operating statements and rent rolls with respect to the ~~Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five~~ Mortgaged Property. (5f) ~~Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate).~~ This indemnity ~~agreement will be~~ is in addition to any liability which Borrower may otherwise ~~have. Moreover, the indemnification provided for in clauses (ii)~~ have and ~~(iii) above~~ shall be effective whether or not an indemnification ~~agreement~~ certificate described ~~in clause (i)~~ above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading provided and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim applicable based on information previously provided by or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of ~~such Indemnified Person~~ Borrower or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) guarantor if the ~~allocation provided by clause (x) above~~ indemnification certificate is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationprovided. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination For purposes of this ~~Agreement and the satisfaction and discharge of the Debt.~~Section: (i) ~~Notwithstanding anything to the contrary contained herein, Borrower~~ The term “Lender” shall ~~have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization~~include its officers and directors.

Appears in 1 contract

Samples: Multifamily Mortgage, Assignment of Rents and Security Agreement (Behringer Harvard Opportunity REIT II, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities ~~and~~ Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information ~~necessary~~ in Borrower’s possession or control (including exercising all rights to obtain information from the CPLV Tenant under the CPLV Lease) as may be reasonably requested to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) In connection with the preparation of any Disclosure Document, Borrower ~~agrees~~ shall, if requested in writing by Lender, confirm that Borrower has examined the Covered Disclosure Information and that such Covered Disclosure Information does not contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. The Indemnifying Persons (i) agree to provide, in connection with the Securitization, ~~an indemnification agreement (i)~~ a certification certifying that ~~(A) Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure ~~Information”) do~~ Information and that, to Borrower’s Knowledge the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not ~~misleading~~misleading (provided that, for the avoidance of doubt, the above qualification to Borrower’s Knowledge with respect to the certification shall not apply or in way affect the indemnification obligations set forth in clause (ii) below), (ii) ~~indemnifying~~ indemnify Lender~~, each Noteholder, JPM (whether or not it is the Lender)~~, any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, ~~directors, partners, employees, representatives, agents~~ directors and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, out-of-pocket costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these ~~obligations~~ obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person ~~may become~~ becomes subject insofar as the Liabilities arise out of or are based upon any ~~untrue statement or alleged~~ untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the ~~omission or alleged~~ omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) ~~agreeing~~ agree to reimburse each Indemnified Person for any out-of-pocket legal or other expenses reasonably incurred by such Indemnified Person, ~~as they are incurred~~within ten (10) Business Days of written demand, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. ~~This~~ The foregoing indemnity ~~agreement~~ will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be ~~effective~~ effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described ~~in clause (i)~~ above is provided. Notwithstanding anything to the contrary contained herein, the liability of Indemnifying Persons under this clause (b) shall not extend to any Liabilities (x) pertaining to any misstatements or omissions in any Disclosure Document other than Covered Disclosure Information requested by Lender in writing to be reviewed by Indemnifying Persons, or (y) unless Lender requested in writing that Indemnifying Persons review such Covered Disclosure Information contained in the Disclosure Document and such Covered Disclosure Information contained untrue statements or omissions constituting Liabilities hereunder and Indemnifying Persons did not identify such untrue statements or omissions. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement ~~or alleged untrue statement~~ of any material fact in the Covered Disclosure Information, or the ~~omission or alleged~~ omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities, provided, however, that the liability of Indemnifying Persons under this clause (c) shall not extend to any Liabilities (x) pertaining to any misstatements or omissions in any Exchange Act Filing other than Covered Disclosure Information requested by Lender in writing to be reviewed by Indemnifying Persons or (y) unless Lender requested in writing that Indemnifying Persons review such Covered Disclosure Information contained in the Exchange Act Filing and such Covered Disclosure Information contained untrue statements or omissions constituting Liabilities hereunder and Indemnifying Persons did not identify such untrue statements or omissions. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior written consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Indemnified Persons in connection with the closing of the ~~Loan or the Securitization~~Loan. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Vici Properties Inc.)

Securitization Indemnification. (a) Borrower understands that ~~certain~~ information provided to Lender by Borrower and its agents, counsel and representatives relating to Borrower, Mortgage Borrower, Guarantor, Clipper Manager or any other Manager that is an Affiliate of Borrower, Mortgage Borrower or Guarantor, their respective constituent owners, the Property and the Collateral (such information, whether provided pursuant to Section 9.1 above or otherwise in connection with the Loan, collectively, the “Borrower Provided Information”; which “Borrower Provided Information” shall be deemed not to include (i) an untrue statement of any material fact contained in the Borrower Provided Third Party Report, except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Third Party Report that the Borrower Provided Third Party Report contained such untrue statement of material fact and Borrower failed to alert Lender to same, or (ii) an omission of a material fact in the Borrower Provided Third Party Report (which omission shall be deemed material if such fact should have been included in the Borrower Provided Third Party Report in order to make the statements, in light of the circumstances under which they were made, not misleading), except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided ~~Information~~ Third Party Report that the Borrower Provided Third Party Report reflected such omission and Borrower failed to alert Lender to same) may be included in ~~Disclosure Documents~~ preliminary and final disclosure documents in connection with ~~the Securitization~~ any Secondary Market Transaction, including a Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, ~~the Rating Agencies~~investment banking firms, NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to ~~the~~ any Secondary Market Transaction, including a Securitization. ~~In the event~~ Borrower also understands that the ~~Disclosure Document is required to~~ findings and conclusions of any third-party due diligence report obtained by the Lender, the Issuer or the Securitization placement agent or underwriter may be ~~revised prior to~~ made publicly available if required, and in the ~~sale of all Securities~~manner prescribed, ~~Borrower will cooperate with the holder~~ by Section 15E(s)(4)(A) of the ~~Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate~~ Exchange Act and ~~complete in all material respects to the extent in Borrower’s possession~~any rules promulgated thereunder. (b) Borrower hereby agrees to ~~provide~~indemnify Lender (and for purposes of this Section 9.2, ~~in connection with~~ Lender shall include the ~~Securitization~~initial agent, ~~an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents~~initial lenders, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” their successors and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitizationassigns, and ~~each of~~ their respective ~~officers,~~ officers and directors~~, partners, employees, representatives, agents and Affiliates~~ ) and each Person ~~or entity~~ who controls ~~any such Person~~ the Lender within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based ~~upon~~ upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information or arise out of or are based upon~~ Borrower Provided Information, (B) the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in the Borrower Provided Information or necessary in order to make the statements in the ~~Covered Disclosure~~ Borrower Provided Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, or (C) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this Agreement (Full and Accurate Disclosure); except, in each case, that (I) Borrower’s obligation to indemnify for any Liabilities that arise in connection with a Disclosure Document that derives in part from information contained in Borrower Provided Information and in part from information either prepared by the Lender Group, the Issuer, the Underwriter Group or any other Person shall be limited to any untrue statement or omission of material fact contained in Borrower Provided Information known to Borrower that results directly from the Borrower Provided Information (or omission from the Borrower Provided Information) and (~~iii~~II) ~~agreeing~~ Borrower shall have no responsibility for (w) any statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to (or requested changes to) in writing to Lender or that were derived from Borrower Provided Third Party Reports, (x) numbers which have been submitted by Borrower and adjusted by any Indemnified Person from those submitted by Borrower, to the extent of such adjustment, (y) third party reports, such as environmental and physical condition reports that do not constitute Borrower Provided Third Party Reports, and (z) any financial projections. Borrower also agrees to reimburse ~~each Indemnified Person~~ Lender, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred~~the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the ~~Liabilities provided~~Liabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, ~~however~~or is based upon, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in ~~the Covered Disclosure Information in~~ reliance ~~upon~~ upon, and in conformity ~~with~~ with, information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Documents~~ Document or in connection with the underwriting or ~~the~~ closing of the ~~Loan (~~Loan, including ~~without limitation~~ financial statements of Borrower and Mortgage Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This ~~indemnity agreement~~ indemnification provision will be in addition to any liability which Borrower may otherwise have. ~~Moreover~~Borrower acknowledges and agrees that any Person that is included in the Lender Group, the ~~indemnification provided for in clauses (ii) and (iii) above~~ Issuer and/or the Underwriter Group that is not a direct party to this Agreement shall be ~~effective whether or not an~~ deemed to be a third-party beneficiary to this Agreement with respect to this Section 9.2(b). Within five (5) Business Days after Lender’s written request, Borrower and Guarantor shall execute and deliver to Lender a separate indemnification and reimbursement agreement ~~described~~ in ~~clause (i) above is provided~~favor of the Lender Group, the Issuer and the Underwriter Group in form and substance consistent with the indemnification and reimbursement obligations of Borrower under this Section 9.2(b). (c) In connection with ~~filings under the~~ any Exchange Act ~~(if any)~~Filing or other reports containing comparable information that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to ~~indemnify~~ (i) indemnify Lender, the ~~Indemnified Persons~~ Lender Group, the Issuer and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Lender Group, the Issuer and/or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based ~~upon any~~ upon, an alleged untrue statement or alleged omission or an untrue statement or omission made in reliance upon, and in conformity with, Borrower Provided Information furnished to Lender by or on behalf of ~~any material fact~~ Borrower in connection with the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light preparation of the ~~circumstances under which they were made~~Disclosure Document or in connection with the underwriting or closing of the Loan, ~~not misleading~~ including financial statements of Borrower and Mortgage Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse ~~each Indemnified Person~~ Lender, the Lender Group, the Issuer and/or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred~~the Lender Group, the Issuer and/or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person~~ such indemnified party pursuant to the immediately preceding sentence of ~~its election to assume the defense of~~ this Section 9.2(d), such ~~claim or action, Borrower~~ indemnifying party shall not ~~be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to ~~another Indemnified Person. (e)~~ any other indemnified party. Without the prior written consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no indemnifying party shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any ~~Indemnified Person~~ indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the indemnifying party shall have given ~~such Indemnified Person~~ Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each ~~Indemnified Person~~ indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings~~. As long~~ , and such settlement requires no statement as ~~Borrower has complied with its obligations~~ to, or an admission of, fault, culpability or a failure to ~~defend and indemnify hereunder~~act, ~~Borrower shall not be liable for any settlement made~~ by ~~any~~ or on behalf of the Indemnified ~~Person without the consent of Borrower (which consent shall not be unreasonably withheld)~~Party. (fe) ~~Borrower agrees that if any indemnification~~ In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.2(b) or ~~reimbursement sought pursuant to this Section 9.2~~ (c) is ~~finally judicially determined to be unavailable~~ for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or ~~is insufficient~~ action in respect thereof) referred to ~~hold any Indemnified Person harmless~~ therein which would otherwise be indemnifiable under Section 9.2(b) or (~~with respect only to the Liabilities that are the subject of this Section 9.2~~c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the Issuer’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Lender and Borrower ~~agrees~~ hereby agree that in it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. In no event shall Borrower be required to indemnify and indemnified party with respect to any matter to the ~~amount to be contributed by~~ extent arising from the ~~Indemnified Persons collectively pursuant to this paragraph exceed the amount~~ gross negligence or willful misconduct of ~~the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~an indemnified party. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (Clipper Realty Inc.)

Securitization Indemnification. (a) ~~Borrower~~ Pledgor understands that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to ~~investors~~ Investors or prospective ~~investors~~ Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ Pledgor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information reasonably necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower~~ Pledgor agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A) Borrower~~ Pledgor has carefully examined the ~~Disclosure Documents, including, without limitation~~portions of such memorandum or prospectus or term sheets identified by Lender that relate to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties~~, Borrower, Mortgage Borrower~~, the Collateral, the ~~Senior~~ Mezzanine ~~Collateral and/or Operating Company) (collectively with the Provided Information~~A Collateral, the ~~“Covered Disclosure Information”)~~ Mezzanine B Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, any Affiliated Manager and Guarantor and that such sections do not contain any untrue statement of a material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, any Affiliated Manager and Guarantor or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender (“Citigroup”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity~~ who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Citigroup Group”), and Citigroup, each of its directors and each Person who controls Citigroup within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, any Affiliated Manager and Guarantor contained in such sections described in clause (A) above, or arise out of or are based upon the ~~Covered Disclosure Information~~ omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, any Affiliated Manager and Guarantor or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Citigroup Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender the Citigroup Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Pledgor will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Pledgor or its Affiliates in connection with the preparation of the memorandum or prospectus or in connection with the underwriting of the debt, including, without limitation, financial statements of Pledgor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnification will be in addition to any liability which Pledgor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Pledgor or its Affiliates if Pledgor does not provide the indemnification certificate. (c) In connection with filings under the Exchange Act, Pledgor agrees to indemnify (i) Lender, the Citigroup Group and the Underwriter Group for Liabilities to which Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, Mezzanine B Borrower, Mezzanine B Principal, any Affiliated Manager or Guarantor required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Citigroup Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Citigroup Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall not be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnifications provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Citigroup’s and Pledgor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Pledgor hereby agree that it would not be equitable if the amount of such contribution were determined solely by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Pledgor and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement, private placement memorandum, offering circular or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower has carefully examined ~~the Disclosure Documents~~such memorandum, ~~including~~prospectus or term sheets, as applicable, including without limitation, the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” and ~~(B)~~ such sections (and ~~such~~ any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lxxxxx Brothers Inc. (“Lxxxxx”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person or entity who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lxxxxx Group”), and Lxxxxx, each of its directors and each Person who controls Lxxxxx within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Lxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in ~~the Covered Disclosure Information~~ such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Lxxxxx Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender and Lxxxxx in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ Liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ debt, including, without ~~limitation~~ limitation, financial statements of ~~Borrower~~ Borrower, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This ~~indemnity agreement~~ indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower agrees to indemnify (i) Lender, the ~~Indemnified Persons~~ Lxxxxx Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Lxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon ~~any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or~~ the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were ~~made,~~ made not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Lxxxxx Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Lxxxxx Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall not be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnifications provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Lxxxxx’x and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (U-Store-It Trust)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document with respect to the Loan accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (the “Indemnification Agreement”) (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, ~~including, without limitation,~~ including the sections entitled “Risk Factors,” “Special ~~Considerations,”~~ Consideration”, “Description of the Collateral,” “Description of the Mezzanine Loans,” “The ~~Operating Company,” “The~~ Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (only to the extent such information ~~relates to or~~ includes any Provided Information or any information ~~regarding~~ specific to the ~~Properties~~Loan, the Loan Documents, Borrower, Mortgage Borrower, Maryland Owner, the Collateral, the ~~Senior Mezzanine Collateral and/or~~ Property, Master Tenant, Operator, Guarantor and the Master Lease and the Operating ~~Company~~Lease) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, ~~each Noteholder~~JPMorgan, ~~JPM (whether~~ CS, BofA, or ~~not it is the Lender),~~ any Affiliate of ~~JPM~~ Lender, JPMorgan, CS or ~~a Noteholder~~ BofA that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, or any Affiliate of ~~JPM~~ Lender, JPMorgan, CS or ~~a Noteholder~~ BofA that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including, without limitation,~~ including reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any reasonable legal fees or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise ~~have~~have pursuant to the Loan Documents or applicable law. Moreover, the ~~indemnification~~ Indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an ~~indemnification agreement described in clause (i) above~~ Indemnification Agreement is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any reasonable legal fees or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person and shall have the right to negotiate and enter into and/or consent to any settlement, subject to the prior approval of Lender and, if different, the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of ~~the Indemnified Person~~ Lender, JPMorgan, CS and BofA (in ~~question (~~each case which consent shall not be unreasonably withheld), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Lender, JPMorgan, CS and BofA, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the ~~fees (by underwriting discount or otherwise)~~ proceeds actually received by the Indemnified Persons in connection with the ~~closing~~ sale of the Loan or portion thereof pursuant to the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall not have no any obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Hcp, Inc.)

Appears in 1 contract

Samples: Loan Agreement (U-Store-It Trust)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of ~~1933,~~ 19337 as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (the entering into of which shall be at no cost to Borrower) (A) certifying that Borrower has ~~carefully~~ examined those portions of such Disclosure Documents specified by Lender for Borrower’s review pertaining to Borrower, Borrower’s Affiliates, Manager or the Loan and that each such Disclosure ~~Documents~~Document, ~~including, without limitation, the~~ as it relates to sections ~~entitled “Risk Factors,” “Special Considerations,” “Description~~ of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents specified with reasonable specificity by Lender relating to Borrower, Borrower’s Affiliates, the Property, Manager and any material aspects of the Loan, does not (except to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively specified by Borrower if Borrower does not agree with the ~~Provided Information, the “Covered Disclosure Information”~~statements therein) ~~do not~~ contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lender Group”), and Lender, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively; the “Underwriter Group”) for any losses, claims, ~~damages,~~ damages or liabilities, ~~costs or expenses (including, without limitation, legal~~ including reasonable attorneys’ fees and ~~expenses for enforcement~~ disbursements, other than those arising out of ~~these obligations~~ the gross negligence, willful misconduct or bad faith of any of the foregoing proposed indemnitees (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement ~~or alleged untrue statement~~ of any material fact contained in ~~the Covered Disclosure Information~~ such sections or arise out of or are based upon the omission ~~or alleged omission~~ to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information~~such sections, in light of the circumstances under which they were made, not misleading (except that (x) Borrower’s obligation to indemnify in respect of any information contained in such sections that is derived in part from information provided by Borrower and in part from information provided by others unrelated to or not employed by Borrower shall be limited to any untrue statement or omission of material fact therein known to Borrower that results from an error in any information provided (or which should have been provided) by Borrower which Borrower has been given the opportunity to examine and reasonably and promptly approve (Borrower hereby confirms that it has reviewed and approved each of the appraisals, engineering, environmental and asbestos reports prepared by third parties in connection with the Loan) and (~~iii~~y) Borrower shall have no responsibility for the failure of any member of the Underwriting Group to accurately transcribe written information supplied by Borrower or the refusal of any member of the Underwriting Group to include any written information supplied by Borrower after an explicit direction from Borrower to do so) and (C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred,~~ the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities to the extent that such legal or other expenses are incurred in connection with matters for which Borrower has agreed to indemnify the Underwriter Group herein; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ loss, claim, damage or liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Documents~~ Document or in connection with the underwriting or ~~the~~ closing of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Borrower, operating statements and ~~rent rolls~~ major customer lists with respect to the ~~Properties),~~ Property and not subsequently retracted or modified in ~~no event shall Borrower be liable for Liabilities arising from information contained~~ whole or in ~~a Disclosure Document that was not provided~~ part so as to ~~Borrower for comment at least five (5) Business Days~~ eliminate the misstatement or omission in question prior to ~~its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)~~any Securitization. This indemnity agreement will be in addition to any liability which Borrower may otherwise have~~. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided~~. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Americold Realty Trust)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with a securitization of the ~~Securitization~~ Loan (the “Securitization”), including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the ~~Securities~~certificates, notes or other securities issued in connection with the Securitization, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Upon Lender’s request, Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined ~~the Disclosure Documents, including, without limitation, the~~ such specific sections ~~entitled “Risk Factors,” “Special Considerations,” “Description~~ of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (specified in writing by Lender, as specifically relating to ~~the extent such information relates to or includes any Provided Information or any information regarding the Properties,~~ Borrower, ~~Mortgage Borrower~~Borrower Affiliates, the ~~Collateral~~Property, Manager, Guarantor and other aspects of the ~~Senior Mezzanine Collateral and/or Operating Company)~~ Loan (~~collectively with the Provided Information,~~ the “~~Covered Disclosure Information~~Specific Sections”~~) do~~ ), does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 16.35, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), and any ~~Affiliate~~ Affiliates of ~~JPM or a Noteholder~~ Lender that ~~has~~ have filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate of Lender within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lender Group”), and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement ~~or alleged untrue statement~~ of any material fact contained in the ~~Covered~~ Specified Sections or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such Specified Sections in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any reasonable and actual out of pocket legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above and under Section 16.35(c) below only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made in the Specified Sections in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Information~~ Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, and operating statements and rent rolls with respect to the Property provided by Borrower. The indemnification provided for in clauses (B) and (C) above shall be effective whether or not the indemnification agreement described above is provided. The aforesaid indemnity will be in addition to any liability which Borrower may otherwise have. (c) In connection with Exchange Act Filings, Borrower shall (subject to the proviso in Section 16.35(b)(ii)(C)) (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered~~ Specified Sections of the Disclosure ~~Information~~ Document a material fact required to be stated ~~therein or necessary~~ in the Specified Sections of the Disclosure Document in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation Specified Sections of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Lender Group or the Underwriter Group for any reasonable and actual out of pocket legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 16.35 of notice of ~~any~~ a claim or and/or the commencement of any ~~action~~action relating to an indemnified Liability, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 16.35, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such~~ claim or action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section 16.35, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party(ies) shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ Section 16.35(b) or (~~which consent shall not~~ c) hereof is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 16.35(b) or (~~whether or not any Indemnified Person is an actual or potential~~ c) hereof, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees (by underwriting discount or otherwise) actually received by~~ respective parties are entitled, the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 following factors shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.be

Appears in 1 contract

Samples: Loan Agreement (Dividend Capital Total Realty Trust Inc.)

Securitization Indemnification. ~~(a)~~ Borrower understands that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including a prospectus, a private placement memorandum or a public registration statement (each, a " Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will reasonably cooperate with the ~~holder of the Note~~ Lender in updating the Provided Information for inclusion or summary in the Disclosure Document by providing all current information pertaining to Borrower and the Properties necessary to keep the Disclosure Document accurate and complete in all material respects with respect to ~~the extent in Borrower’s possession.~~ such matters. In connection with each of (bx) ~~Borrower~~ a preliminary and a private placement memorandum or (y) a preliminary and final prospectus, as applicable, Bxxxxxxx agrees to ~~provide, in connection with the Securitization,~~ provide an indemnification ~~agreement (i)~~ certificate: certifying that ~~(A)~~ such Borrower has ~~carefully~~ examined those portions of such memorandum or prospectus, as applicable, pertaining to such Borrower, the ~~Disclosure Documents, including, without limitation,~~ Property and the Loan including applicable portions of the sections entitled ~~“Risk Factors,” “~~"Special Considerations~~,” “~~", "Description of the ~~Collateral,” “~~Mortgages", "Description of the ~~Mezzanine Loans,” “~~Mortgage Loans and Mortgaged Properties", "The ~~Operating Company,” “~~Manager", "The Borrower” " and “"Certain Legal Aspects of the ~~Mezzanine Loans,”~~ Mortgage Loan", and ~~(B)~~ such sections (and ~~such~~ any other ~~information in the Disclosure Documents (~~sections reasonably requested and pertaining to ~~the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage~~ Borrower, the ~~Collateral~~Properties or the Loan) insofar as such sections relate to Borrower, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Managing Members, the ~~“Covered Disclosure Information”)~~ Property Manager or the Mortgaged Property do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; indemnifying Lender and the affiliates of Deutsche Bank Securities Inc. (collectively, ~~(ii~~"DBS") ~~indemnifying Lender, each Noteholder, JPM (whether or not it is~~ that have filed the ~~Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement~~ Disclosure Document relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Disclosure Document and each ~~Person~~ person or entity who controls ~~any such Person~~ DBS within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”~~"DBS Group"), and DBS, together with the DBS Group and each of their respective directors and each person who controls DBS or the DBS Group, within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the " Underwriter Group") for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses~~ liabilities (~~including, without limitation, legal fees and expenses for enforcement of these obligations (collectively,~~ the “"Liabilities”)") to which any ~~such Indemnified Person~~ member of the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered Disclosure Information~~ information supplied by Borrower applicable to Borrower, the Property or the Loan, or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in the applicable portions of such sections or necessary in order to make the statements in the ~~Covered Disclosure Information,~~ applicable portions of such sections or in light of the circumstances under which they were made, not ~~misleading~~ misleading; and ~~(iii)~~ agreeing to reimburse ~~each Indemnified Person~~ the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ the Underwriter Group in connection with investigating or defending the ~~Liabilities provided, however, that Borrower~~ Liabilities. Bxxxxxxx's Liability under subparagraphs (i) and (ii) above and this subparagraph (iii) shall ~~have liability with respect~~ be limited to Liabilities arising out of or ~~based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are~~ based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of those portions of the ~~Disclosure Documents~~ memorandum or prospectus pertaining to Borrower, the Property or the Loan or in connection with the underwriting ~~or the closing~~ of the ~~Loan (~~debt, including ~~without limitation~~ financial statements of ~~Borrower~~ Bxxxxxxx, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) ~~Notwithstanding anything~~ the DBS Group's and Bxxxxxxx's relative knowledge and access to information concerning the ~~contrary contained herein, Borrower shall have no obligation to act as depositor~~ matter with respect to which claim was asserted; (ii) the ~~Loan~~ opportunity to correct and prevent any statement or ~~an issuer~~ omission; and (iii) any other equitable considerations appropriate in the circumstances. Lxxxxx and Bxxxxxxx hereby agree that it may not be equitable if the amount of such contribution were determined by pro rata or ~~registrant with respect to~~ per capita allocation that does not take into account the ~~Securities issued in any Securitization~~preceding consideration.

Appears in 1 contract

Samples: Secured Indebtedness Agreement (Parkway Properties Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Approved Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in ~~updating the Disclosure Document by~~ providing ~~all~~ current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent such information is in Borrower’s ~~possession~~possession or control. (b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has ~~carefully~~ examined the Covered Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Information and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure ~~Information”) do~~ Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying Lender, ~~each Noteholder, JPM (whether or not it is the Lender),~~ any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as an underwriter, placement ~~agent or initial purchaser of Securities issued in the Securitization~~agent, any other co-~~underwriters,~~ underwriters or co-placement ~~agents or co-initial purchasers of Securities issued in the Securitization~~agents, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these ~~obligations~~ obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Person in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such Liabilities arise out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with (1) the written information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the ~~preparation of the Disclosure Documents or in connection with the~~ underwriting or ~~the~~ closing of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Borrower, operating statements and rent rolls with respect to the ~~Properties),~~ Properties and (2) those portions of the Disclosure Documents furnished to and approved by Borrower in ~~no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided~~ the certificate furnished pursuant to ~~Borrower for comment at least five~~ clause (5A) ~~Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)~~above. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (~~iii~~C) above shall be ~~effective~~ effective, valid and binding obligations of Borrower, whether or not an indemnification agreement described in clause (iA) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section ~~9.2~~ 8.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section ~~9.2~~8.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from ~~any~~ Borrower to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (ed) Without the prior written consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably ~~withheld~~withheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given ~~such Indemnified Person~~ Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceedings and such settlement requires no statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of each Indemnified Person. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (fe) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section ~~9.2~~ 8.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section ~~9.2~~8.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section ~~9.2~~8.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this ~~paragraph~~ Section 8.2(e) exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Indemnified Persons in connection with the closing of the ~~Loan or the Securitization~~Loan. (gf) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 8.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~8.2. (hg) The liabilities and obligations of the Indemnified Persons and Borrower under this Section ~~9.2~~ 8.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (ih) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (American Homes 4 Rent)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the ~~Securities~~Securities (or any class thereof), the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such ~~sections and such other information in the~~ Disclosure Documents ~~(to the extent~~ specified by Lender and that each such ~~information~~ Disclosure Document, as it relates to ~~or includes any Provided Information or any information regarding the Properties~~Borrower, Mezzanine A Borrower, Mortgage Borrower, Borrower Affiliates, the Property, the Collateral, the ~~Senior~~ Mezzanine ~~Collateral and/or Operating Company) (collectively with~~ A Collateral, Manager and all other aspects of the ~~Provided Information~~Loan, ~~the “Covered Disclosure Information”) do~~ does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Lender Group”)) , and Lender, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the ~~Covered~~ omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Information~~ Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. (c) In connection with Exchange Act Filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After written notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section 9.2, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Lender’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (ig) Notwithstanding anything ~~to the contrary~~ contained ~~herein~~in this Article IX, Borrower ~~shall have no obligation~~ agrees to act ~~as depositor~~ in a commercially reasonable manner with respect to requests made by Lender or any Rating Agency in a Secondary Market Transaction; provided, however, all costs, fees and expenses of such Secondary Market Transaction (other than legal costs, fees and expenses of Borrower) shall be the ~~Loan or an issuer or registrant with respect to the Securities issued in any Securitization~~sole responsibility of Lender.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (Telx Group, Inc.)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined such Disclosure Documents specified by Lender and that each such Disclosure Document, as it relates to Borrower, Borrower Affiliates, the ~~Disclosure~~ Property, Manager, Operating Partnership, Guarantor and all other aspects of the Loan Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) ~~indemnifying Lender~~SUBJECT TO THE TERMS OF ARTICLE 13 HEREOF, ~~each Noteholder~~INDEMNIFYING LENDER (AND FOR PURPOSES OF THIS SECTION 11.2, ~~JPM (whether or not it is the Lender~~LENDER HEREUNDER SHALL INCLUDE ITS OFFICERS AND DIRECTORS), ~~any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization~~THE AFFILIATE OF XXXXX FARGO BANK, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act NATIONAL ASSOCIATION (~~collectively, the~~ “~~Indemnified Persons~~XXXXX”) THAT HAS FILED THE REGISTRATION STATEMENT RELATING TO THE SECURITIZATION (THE “REGISTRATION STATEMENT”), ~~for any losses~~EACH OF ITS DIRECTORS, ~~claims~~EACH OF ITS OFFICERS WHO HAVE SIGNED THE REGISTRATION STATEMENT AND EACH PERSON THAT CONTROLS THE AFFILIATE WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT OR SECTION 20 OF THE EXCHANGE ACT (COLLECTIVELY, ~~damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the~~ THE “~~Liabilities~~XXXXX GROUP”), AND XXXXX, AND ANY OTHER PLACEMENT AGENT OR UNDERWRITER WITH RESPECT TO THE SECURITIZATION, EACH OF THEIR RESPECTIVE DIRECTORS AND EACH PERSON WHO CONTROLS XXXXX OR ANY OTHER PLACEMENT AGENT OR UNDERWRITER WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT AND SECTION 20 OF THE EXCHANGE ACT (COLLECTIVELY, THE “UNDERWRITER GROUP”) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationFOR ANY LOSSES, ~~in light of the circumstances under which they were made~~CLAIMS, ~~not misleading~~ DAMAGES OR LIABILITIES (COLLECTIVELY, THE “LIABILITIES”) TO WHICH LENDER, THE XXXXX GROUP OR THE UNDERWRITER GROUP MAY BECOME SUBJECT INSOFAR AS THE LIABILITIES ARISE OUT OF OR ARE BASED UPON ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF ANY MATERIAL FACT CONTAINED IN SUCH SECTIONS OR ARISE OUT OF OR ARE BASED UPON THE OMISSION OR ALLEGED OMISSION TO STATE THEREIN A MATERIAL FACT REQUIRED TO BE STATED IN SUCH SECTIONS OR NECESSARY IN ORDER TO MAKE THE STATEMENTS IN SUCH SECTIONS, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Xxxxx Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred,~~ the Xxxxx Group and the Underwriter Group in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ loss claim, damage or liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Documents~~ Document or in connection with the underwriting or ~~the~~ closing of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Borrower, operating statements and rent rolls with respect to the ~~Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five~~ Property (~~5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate~~the “Provided Information”). ~~This~~ The indemnification provided for in clauses (B) and (C) above shall be effective whether or not the indemnification agreement described above is provided; provided, however, such indemnity ~~agreement~~ shall be limited to the Provided Information and shall only be effective to the extent that Lender accurately states the Provided Information in the applicable Disclosure Document. The aforesaid indemnity will be in addition to any liability which Borrower may otherwise have~~. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided~~. (c) ~~In connection with filings under the Exchange Act~~ IN CONNECTION WITH EXCHANGE ACT FILINGS, SUBJECT TO THE TERMS OF ARTICLE 13 HEREOF, BORROWER SHALL (~~if any)~~I) INDEMNIFY LENDER, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure InformationTHE XXXXX GROUP AND THE UNDERWRITER GROUP FOR LIABILITIES TO WHICH LENDER, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationTHE XXXXX GROUP OR THE UNDERWRITER GROUP MAY BECOME SUBJECT INSOFAR AS THE LIABILITIES ARISE OUT OF OR ARE BASED UPON THE OMISSION OR ALLEGED OMISSION TO STATE IN THE PROVIDED INFORMATION A MATERIAL FACT REQUIRED TO BE STATED IN THE PROVIDED INFORMATION IN ORDER TO MAKE THE STATEMENTS IN THE PROVIDED INFORMATION, ~~in light of the circumstances under which they were made~~IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, ~~not misleading~~ NOT MISLEADING and (ii) reimburse ~~each Indemnified Person~~ Lender, the Xxxxx Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Xxxxx Group or the Underwriter Group in connection with defending or investigating the Liabilities; provided, however, that Borrower’s liability under clauses (i) and (ii) above shall be effective only to the extent that Lender accurately sets forth the Provided Information in the applicable Disclosure Document. The obligations of Borrower pursuant to this Section 11.2(c) shall be in addition to but not in duplication of Section 11.2(b) above. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 11.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 11.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section 11.2, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The ~~Indemnified Person~~ indemnified party shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such ~~Indemnified Person~~ indemnified party is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the indemnifying party is required hereunder to indemnify such ~~Indemnified Person~~indemnified party. ~~Borrower~~ The indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ Section 11.2(b) or (~~which consent shall not~~ c) hereof is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 11.2(b) or (~~whether or not any Indemnified Person is an actual or potential~~ c) hereof, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Xxxxx’ and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise~~per capita allocation. (f) ~~actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~SUBJECT TO THE TERMS OF ARTICLE 13 HEREOF, BORROWER SHALL JOINTLY AND SEVERALLY INDEMNIFY LENDER AND ITS OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND AFFILIATES AGAINST ANY LOSSES TO WHICH LENDER OR ITS OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND AFFILIATES, MAY BECOME SUBJECT IN CONNECTION WITH ANY INDEMNIFICATION TO THE RATING AGENCIES IN CONNECTION WITH ISSUING, MONITORING OR MAINTAINING THE SECURITIES INSOFAR AS THE LOSSES ARISE OUT OF OR ARE BASED UPON ANY UNTRUE STATEMENT OF ANY MATERIAL FACT IN ANY INFORMATION PROVIDED BY OR ON BEHALF OF BORROWER TO THE RATING AGENCIES (THE “COVERED RATING AGENCY INFORMATION”) OR ARISE OUT OF OR ARE BASED UPON THE OMISSION TO STATE A MATERIAL FACT IN THE COVERED RATING AGENCY INFORMATION REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS IN COVERED RATING AGENCY INFORMATION, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section ~~9.2~~ 11.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Cole Corporate Income Trust, Inc.)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in the Disclosure ~~Documents~~ Document in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ Borrower, each Principal and Guarantor agree to ~~provide,~~ provide in connection with each of (i) a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus or prospectus supplement, (iii) such other offering materials as may be used for the ~~Securitization~~securitization of the Loan (such materials described in clauses (i), (ii) or (iii), as applicable, being hereinafter referred to collectively as the "Offering Materials"), an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A) Borrower has~~ Borrower, each Principal and Guarantor have carefully examined the ~~Disclosure Documents~~Offering Materials, ~~including,~~ including without limitation, the sections entitled ~~“Risk Factors,” “~~"Special Considerations,~~” “~~" "Description of the ~~Collateral~~Mortgages,~~” “~~" "Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,~~” “~~" "The ~~Operating Company~~Manager,~~” “~~" "The Borrower” " and “"Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” " and ~~(B)~~ that such sections (and any other sections reasonably requested) and such ~~other information in the Disclosure Documents (to the extent such information relates~~ Offering Materials as they relate to or ~~includes~~ include any ~~Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the~~ Provided Information, and as they relate to the ~~“Covered Disclosure Information”)~~ Property, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender ("Credit Suisse First Boston") that has filed ~~any~~ the registration statement relating to the ~~Securitization or has acted as~~ securitization (the ~~sponsor or depositor in connection with the Securitization~~"Registration Statement"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity~~ who controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”~~"Credit Suisse First Boston Group"), and Credit Suisse First Boston, each of its directors and each Person who controls Credit Suisse First Boston within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "Underwriter Group") for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “"Liabilities”)") to which ~~any such Indemnified Person~~ Credit Suisse First Boston, the Credit Suisse First Boston Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in ~~the Covered Disclosure Information~~ such sections or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections or necessary in order to make the statements in ~~the Covered Disclosure Information,~~ such sections or in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Credit Suisse First Boston Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender and Credit Suisse First Boston in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that Borrower ~~shall have liability with respect to Liabilities arising out of~~ will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the ~~Disclosure Documents~~ memorandum or prospectus or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of Borrower and operating ~~statements~~ statements, rent rolls, environmental site assessment reports and ~~rent rolls~~ property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in clause (iA) above is ~~provided. (c) In connection with filings under the Exchange Act (~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if ~~any),~~ Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, does not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under provide the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personcertificate. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Pennsylvania Real Estate Investment Trust)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) (1) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the sections of the Disclosure ~~Documents, including, without limitation, the sections~~ Documents entitled “~~Risk Factors,” “Special Considerations~~Description of the Mortgages,” “Description of ~~the Collateral~~die Mortgage Loans and Mortgaged Property,” ~~“Description of the Mezzanine Loans,” “The Operating Company,”~~ and “The Borrower” (but only to the extent they related to the Mortgages, the Loan, the Properties or Borrower and only if Borrower has been given a reasonable opportunity to review such sections) (collectively, the “~~Certain Legal Aspects of the Mezzanine Loans,”~~ Disclosure Documents Sections”) and (B) ~~such sections~~ the Disclosure Documents Sections and ~~such other information~~ any Provided Information properly used in connection with the preparation of the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Informationcollectively, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (provided that such certification shall be as to Borrower’s knowledge with respect to information provided or furnished by Operator Tenants to Borrower) and (2) which is otherwise reasonably satisfactory to Lender and Borrower, (ii) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ CS (whether or not it is the Lender), any Affiliate of ~~JPM or a Noteholder~~ CS that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ CS that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact ~~required to be stated therein or~~ necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading (provided that such indemnification shall be applicable with respect to information furnished by Operator Tenants to Borrower only if Borrower has knowledge that such information was an untrue statement- of material fact or was an omission or alleged omission to state a material fact necessary in order to make such information, in light of the circumstances under which it was made, not misleading) and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with any filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (~~i) the~~ i)the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Disclosure Documents Sections or in any Provided Information properly used in connection with the preparation of the Disclosure Documents or any filings under the Exchange Act (collectively, the “Filings Covered Disclosure Information”), or the omission or alleged omission to state in the Filings Covered Disclosure Information a material fact ~~required to be stated therein or~~ necessary in order to make the statements in the Filings Covered Disclosure Information, in light of the circumstances under which they were made, not misleading (provided that such indemnification shall be applicable with respect to information furnished by Operator Tenants to Borrower only if Borrower has knowledge that such information was an untrue statement of material fact or was an omission or alleged omission to state a material fact necessary in order to make such information, in light of the circumstances under which it was made, not misleading) and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and ~~it shall notify Borrower thereof, Borrower~~ any Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person ~~or Persons~~ as a group shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified ~~Person or Persons~~Person. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ Indemnifying Persons shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personcounsel. (e) Without the prior consent of ~~the Indemnified Person in question~~ CS (which consent shall not be unreasonably withheld), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (~~whether or not~~ for any Indemnified Person that is an actual party or ~~potential~~ reasonably could become a party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person that shall have given ~~such Indemnified Person~~ CS reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (~~x) in~~ x)in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Capitalsource Inc)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined such Disclosure Documents specified by Lender and that, to the best of Borrower’s knowledge, each such Disclosure ~~Documents~~Document, ~~including~~as it relates to Borrower, ~~without limitation~~Borrower’s Affiliates, the ~~sections entitled “Risk Factors,” “Special Considerations,” “Description~~ Individual Property, Manager and all other aspects of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesLoan, ~~Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do~~ does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co. (“Xxxxxx Xxxxxxx”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Xxxxxx Xxxxxxx Group”), and Xxxxxx Xxxxxxx, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Xxxxxx Xxxxxxx or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the ~~Covered~~ omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Xxxxxx Xxxxxxx Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Xxxxxx Xxxxxxx Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Information~~ Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Individual Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. (c) In connection with Exchange Act Filings, Borrower shall (i) indemnify Lender, the Xxxxxx Xxxxxxx Group and the Underwriter Group for Liabilities to which Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Xxxxxxx Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Xxxxxx Xxxxxxx Group or the Underwriter Group in connection with defending or investigating the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (i) or (ii) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Individual Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section 9.2, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Xxxxxx Xxxxxxx’x and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both of Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Wells Real Estate Investment Trust Inc)

Securitization Indemnification. (a) Each of Borrower and Equity Owner understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Equity Owner will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement in form reasonably satisfactory to Lender and the Indemnifying Persons (i) certifying that (A) ~~Borrower~~ each Indemnifying Person has ~~carefully~~ examined those portions of the Disclosure ~~Documents, including~~Documents specified by Lender and provided to such Indemnifying Person which may include, without limitation, the sections entitled “Risk Factors,” ”, “Special Considerations,” ”, “Description of the Security Instruments”, “Description of the Mortgage Loans and Mortgaged Property”, “Description of the Collateral,” “Description of the Mezzanine ~~Loans~~Loan,” “The Ground Lease,” “The Master Lease,” “The Operating ~~Company~~Lease,” “The Condominiums,” “The Manager”, “The Borrower,” “The Ground Lessee”,” “The Master Lessee,” “The Operating Lessee”, “Description of the Mortgage Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans,”~~ Mortgage Loan”, and (B) such sections ~~and such other information in the Disclosure Documents~~ (to the extent such information relates to or includes any Provided Information or any information regarding the ~~Properties~~Property, the Collateral, Borrower, Equity Owner, Mortgage Borrower, ~~the Collateral~~Operating Lessee, Operating Lessee Pledgor, Manager which is an Affiliate of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor, the ~~Senior Mezzanine Collateral~~ Mortgage Loan and/or ~~Operating Company~~the Loan) (collectively with the Provided Information, the “Covered Disclosure Information”~~) do~~ ), and such Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ Credit Suisse (whether or not it is the Lender), any Affiliate of ~~JPM or a Noteholder~~ Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of or based upon~~ (x) the ~~Covered Disclosure Information~~ Indemnifying Person will be liable in any such case under Section 9.1.4(b) only to the extent that any such ~~Liabilities arise~~ loss claim, damage or liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of ~~Borrower~~ the Indemnifying Person in connection with the preparation of the Disclosure ~~Documents~~ Document, (y) the Indemnifying Person shall not be obligated to provide the certification set forth herein or be liable hereunder if such Indemnifying Person has not been afforded reasonable time under the circumstances to review and comment on the applicable sections of the applicable Disclosure Document, and (z) no Indemnifying Person shall be liable in connection with the ~~underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls~~ above with respect to any statement or omission or any failure of Lender to accurately transcribe any portion of the ~~Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a~~ Covered Disclosure ~~Document that was not~~ Information provided ~~to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate~~ by such ~~comments (assuming such comments were accurate)~~Indemnifying Person. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be ~~effective~~ effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with ~~filings under~~ any filing pursuant to the Exchange Act ~~(if any)~~in connection with or relating to the Securitization, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities; provided, however, that (x) the Indemnifying Person will be liable in any such case under Section 9.2(c) only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of the Indemnifying Person in connection with the preparation of the Disclosure Document, (y) the Indemnifying Person shall not be obligated to provide the certification set forth herein or be liable hereunder if such Indemnifying Person has not been afforded reasonable time under the circumstances to review and comment on the applicable sections of the applicable Disclosure Document, and (z) no Indemnifying Person shall be liable in connection with the above with respect to any statement or omission or any failure of Lender to accurately transcribe any portion of the Covered Disclosure Information provided by such Indemnifying Person. (d) Borrower shall indemnify Lender and each of its respective officers, directors, partners, employees, representatives involved in the origination of the Loan or the Securitization, agents and Affiliates against any liabilities to which Lender, each of its respective officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the liabilities arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of the Borrowers and Equity Owner to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading. (e) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there ~~may be legal defenses available to it that are different from or additional to those available to another~~ is an actual conflict of interest between the Indemnified ~~Person~~Parties seeking separate representation. (ef) Without the prior written consent of ~~the Indemnified Person in question~~ Credit Suisse (which consent shall not be unreasonably withheld), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Credit Suisse reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld). (g) (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (gh) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hi) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (ij) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (New York REIT, Inc.)

Securitization Indemnification. (a) Each Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to ~~the~~ a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees to provide~~Upon Lender’s reasonable request, Borrowers shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) ~~Borrower has carefully~~ certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the ~~Disclosure Documents, including, without limitation~~Loan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, ~~Borrower~~the IP, ~~Mortgage Borrower~~the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Managers, the ~~“Covered Disclosure Information”) do~~ Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying ~~Lender, each Noteholder, JPM (whether~~ Lender or ~~not it is the Lender),~~ any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages~~, liabilities, costs~~ ) or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the ~~Covered Disclosure Information~~ Properties, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements ~~in the Covered Disclosure Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Person in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of~~ Borrowers will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by ~~or on behalf of Borrower~~ Borrowers in connection with the preparation of ~~the~~ any Disclosure ~~Documents~~ Document(s) or in connection with the underwriting or ~~the~~ closing of the Loan ~~(including~~ or in the ordinary course of the Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an a separate indemnification agreement ~~described in clause (i) above~~ is provided. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, ~~Borrower agrees to indemnify~~ Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified ~~Person~~ Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the ~~Covered Disclosure Information~~Loan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in ~~the Covered~~ any such Disclosure ~~Information~~ Document a material fact in any Loan Party’s actual knowledge, required to be stated ~~therein or necessary~~ in such Disclosure Document in order to make the statements in ~~the Covered~~ such Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified ~~Persons, as they are incurred,~~ Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties. (d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of ~~any claim or~~ the commencement of any action, ~~the~~ such Indemnified Person ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrowers under this Section 9.3, notify ~~Borrower~~ Borrowers in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that the failure~~ omission to so notify ~~Borrower shall~~ Borrowers will not relieve it any Borrower from any liability which it any Borrower may have ~~under the indemnification provisions of this Section 9.2~~ to any Indemnified Person hereunder except to the extent that ~~it has been materially prejudiced by~~ such ~~failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes material prejudice to any ~~liability which it may have to an Indemnified Person otherwise than under~~ Borrower. In the ~~provisions of this Section 9.2. If~~ event that any ~~such claim or~~ action ~~shall be~~ is brought against an any Indemnified Person, and it ~~shall notify Borrower~~ notifies Borrowers of the commencement thereof, ~~Borrower shall~~ Borrowers will be entitled to participate therein and, to the extent that ~~it wishes~~they may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to ~~the~~ such Indemnified Person. After notice from ~~any Borrower~~ Borrowers to an such Indemnified Person ~~of its election to assume the defense of~~ under this Section 9.3, such ~~claim or action, Borrower shall not be liable to the~~ Indemnified Person shall pay for any legal or other expenses subsequently incurred by ~~the~~ such Indemnified Person in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ Indemnified Person and ~~one or more Indemnified Persons on~~ any Borrower and the ~~other hand, and an~~ Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or ~~in addition~~ additional to those available to ~~Borrower~~Borrowers, the Indemnified ~~Person or Persons~~ Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified ~~Person or Persons~~Person(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such~~ any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ Lender, (which consent shall not be unreasonably withheld), no Borrower shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ Borrowers shall have given ~~such Indemnified Person~~ Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceeding. As long as ~~Borrower has~~ Borrowers have complied with ~~its~~ their obligations to defend and indemnify hereunder, ~~Borrower~~ Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ Borrowers (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section ~~9.2~~ 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section ~~9.2~~9.3), then ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of ~~Borrower~~Borrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section ~~9.2~~9.3, ~~(A)~~ no ~~party~~ Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other ~~party~~ Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ Borrowers further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~9.3. (h) ~~The~~ Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of ~~the Indemnified Persons~~ Borrowers and ~~Borrower~~ Lender under this Section ~~9.2~~ 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange ~~Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange~~ Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons Table of Contents have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The ~~Operating Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine ~~Loans~~Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Collateral, the Properties, Borrower, ~~Mortgage Borrower~~Guarantor, Xxxxxx Cushion Entity, Manager and the ~~Collateral~~Manager, Franchisor and/or the ~~Senior Mezzanine Collateral and/or Operating Company)~~ Loan), other than information regarding other loans and assets in a pool of loans which includes the Loan (collectively with the Provided Information, the “Covered Disclosure Information”) do not (and with respect to any portion of the Disclosure Documents prepared in reliance on the reports of third parties, to the best of their knowledge do not) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender~~, each Noteholder, JPM (whether or not it is the Lender)~~, any Affiliate of ~~JPM or a Noteholder~~ Lender that ~~has filed any registration statement relating to the Securitization or~~ has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as ~~an underwriter,~~ a placement agent or initial purchaser of Securities issued in the Securitization, any other ~~co-underwriters, co-~~co- placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading ~~and~~ (~~iii) agreeing~~ other than a statement or omission based upon the reports of third parties that do not to ~~reimburse each Indemnified Person for~~ their knowledge contain any ~~legal~~ untrue statement or ~~other expenses incurred by such Indemnified Person, as they are incurred~~omission of a material fact necessary in order to make the statements made, in ~~connection with investigating or defending~~ light of the ~~Liabilities~~ circumstances under which they were made, not misleading) provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information~~ Indemnified Persons will be liable in any case above but only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ thereon in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower and its Affiliates in connection with the preparation of the Disclosure Documents or in connection with the ~~underwriting or the closing of the Loan (including~~ Securitization, including, without ~~limitation~~ limitation, financial statements of Borrower or its Affiliates, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ property condition reports with respect to the ~~Properties)~~Properties (other than third party reports which to the Borrower’s knowledge do not contain any untrue statement or omission of a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading) but excluding any projections made in good faith by Borrower or its Affiliates; and provided that this Section shall not apply to any Liabilities to the extent arising out of any untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission made in reliance upon and in ~~no event~~ connection with the written information furnished to Borrower or its Affiliates by Lender or any Indemnified Person expressly for use in the Disclosure Documents unless Borrower or Guarantor fails to correct any such untrue statement, Table of Contents misstatement or omission that is known to Borrower or Guarantor or that, with the exercise of customary reasonable efforts, should be known to Borrower or Guarantor and (iii) agreeing to reimburse each Indemnified Person for any legal or other out-of-pocket expenses reasonably incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, Disclosure Documents shall not inure to the benefit of any Indemnified Person if Borrower ~~be liable for Liabilities arising~~ or its Affiliates shall sustain the burden of proving that any such loss, liability, claim, damage or expense resulted from ~~information contained in~~ the fact that a ~~Disclosure Document that~~ Person was not provided ~~to Borrower for comment~~ with a copy of the final Disclosure Documents at ~~least five (5) Business Days~~ or prior to ~~its dissemination~~ the written confirmation of the sale of such securities to such Person and the loss, liability, claim, damager or ~~on which Borrower provided comments to Lender~~ expense resulted from an untrue statement or misstatement contained in, or omission from, the preliminary Disclosure Documents that were corrected in ~~writing and Lender failed to incorporate such comments (assuming such comments were accurate)~~the final Disclosure Documents. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Mezzanine Loan Agreement (Wyndham International Inc)

Securitization Indemnification. (a) Each Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by such Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the ~~“Securities Act”~~"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the ~~“Exchange Act”~~"EXCHANGE ACT"), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating ~~Agencies,~~ Agencies and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Each Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that such Borrower has ~~carefully~~ examined ~~the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description~~ such provisions of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents ~~(to the extent~~ as specified by Lender and that each such ~~information~~ Disclosure Document, as it relates to ~~or includes any Provided Information or any information regarding the Properties,~~ such Borrower, ~~Mortgage~~ such Borrower's Affiliates, the ~~Collateral~~applicable Individual Property, Manager and all other aspects of the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Loan, ~~the “Covered Disclosure Information”) do~~ does not contain any untrue statement of a 153 material fact or omit to state a material fact necessary in order to make the statements made, in ~~the~~ light of the circumstances under which they were made, not ~~misleading~~misleading (provided such Disclosure Documents are not materially modified after Borrower's review), (iiB) indemnifying ~~Lender~~Lender (and for purposes of this SECTION 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ UBS Warburg ("UBS") that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”~~"UBS GROUP"), and UBS, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls UBS or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the ~~“Liabilities”)~~"LIABILITIES") to which ~~any such Indemnified Person may become subject~~ Lender, the UBS Group or the Underwriter Group incur insofar as the Liabilities arise out of of, or are based ~~upon~~ upon, any untrue statement or alleged untrue statement of any material fact contained in ~~the Covered Disclosure Information~~ such sections specified by Lender or arise out of of, or are based ~~upon~~ upon, the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact required to be stated ~~therein~~ in such sections specified by Lender or necessary in order to make the statements in ~~the Covered Disclosure Information~~such sections specified by Lender, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the UBS Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred,~~ the UBS Group and/or the Underwriter Group in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of~~ Borrowers will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such ~~Liabilities arise~~ Liability arises out of of, or ~~are~~ is based ~~upon~~ upon, any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance ~~upon~~ upon, and in conformity ~~with~~ with, information furnished to Lender ~~or such Noteholder~~ by or on behalf of ~~Borrower~~ Borrowers in connection with the preparation of the Disclosure ~~Documents~~ Document or in connection with the underwriting or ~~the~~ closing of the ~~Loan (~~Loan, including ~~without limitation~~ financial statements of ~~Borrower and~~ Borrowers, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which ~~Borrower~~ Borrowers may otherwise have~~. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided~~. (c) In connection with ~~filings under the~~ any Exchange Act ~~(if any)~~Filing, ~~Borrower agrees to indemnify~~ Borrowers shall (i) indemnify Lender, the ~~Indemnified Persons~~ UBS Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person may become subject~~ Lender, the UBS Group and/or the Underwriter Group actually incur insofar as the Liabilities arise out of of, or are based ~~upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information~~upon, or the omission or alleged omission to state in the ~~Covered~~ Disclosure ~~Information~~ Document a material fact required to be stated ~~therein or necessary~~ in the Disclosure Document in order to make the statements in the ~~Covered~~ Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (ii) reimburse ~~each Indemnified Person~~ Lender, the UBS Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the UBS Group and/or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this SECTION 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this SECTION 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. 154 In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this SECTION 9.2, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any reasonable legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to ~~another Indemnified Person~~the indemnifying party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ SECTION 9.2(b) or (~~which consent shall not~~ c) is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under SECTION 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities ~~for which such indemnification~~ (or ~~reimbursement is held unavailable or is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); PROVIDED, ~~on the one hand~~HOWEVER, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) UBS's and Borrowers' relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrowers hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrowers and ~~Borrower~~ Lender under this ~~Section~~ SECTION 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Horizon Group Properties Inc)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating -121- the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (ba) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement in form reasonably satisfactory to Lender and the Indemnifying Persons (i) certifying that (A) ~~Borrower~~ each Indemnifying Person has ~~carefully~~ examined those portions of the Disclosure ~~Documents, including~~Documents specified by Lender and provided to such Indemnifying Person which may include, without limitation, the sections entitled “Risk Factors,” ”, “Special Considerations,” ”, “Description of the ~~Collateral,”~~ Security Instruments”, “Description of the ~~Mezzanine Loans,”~~ Mortgage Loans and Mortgaged Property”, “The ~~Operating Company,”~~ Manager”, “The Borrower,” and “Certain Legal Aspects of the ~~Mezzanine Loans,”~~ Mortgage Loan”, and (B) such sections ~~and such other information in the Disclosure Documents~~ (to the extent such information relates to or includes any Provided Information or any information regarding the ~~Properties~~Property, Borrower, ~~Mortgage Borrower~~Manager which is an Affiliate of Borrower or Guarantor, and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the “Covered Disclosure Information”~~) do~~ ), and such Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying ~~Lender~~each Co-Lender (including its officers and directors), ~~each Noteholder, JPM~~ Credit Suisse (whether or not it is the Lender), any Affiliate of ~~JPM or a Noteholder~~ any Co-Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ any Co-Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of or based upon~~ (x) the ~~Covered Disclosure Information~~ Indemnifying Person will be liable in any such case under Section 9.1.4(b) only to the extent that any such ~~Liabilities arise~~ loss claim, damage or liability arises out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to any Co-Lender ~~or such Noteholder~~ by or on behalf of ~~Borrower~~ the Indemnifying Person in connection with the preparation of the Disclosure ~~Documents~~ Document, (y) the Indemnifying Person shall not be obligated to provide the certification set forth herein or be liable hereunder if such Indemnifying Person has not been afforded reasonable time under the circumstances to review and comment on the applicable sections of the applicable Disclosure Document, and (z) no Indemnifying Person shall be liable in connection with the ~~underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls~~ above with respect to any statement or omission or any failure of a Co-Lender to accurately transcribe any -122- portion of the ~~Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a~~ Covered Disclosure ~~Document that was not~~ Information provided ~~to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate~~ by such ~~comments (assuming such comments were accurate)~~Indemnifying Person. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be ~~effective~~ effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (i) above is provided. (cb) In connection with ~~filings under~~ any filing pursuant to the Exchange Act ~~(if any)~~in connection with or relating to the Securitization, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities; provided, however, that (x) the Indemnifying Person will be liable in any such case under Section 9.2(c) only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to any Co-Lender by or on behalf of the Indemnifying Person in connection with the preparation of the Disclosure Document, (y) the Indemnifying Person shall not be obligated to provide the certification set forth herein or be liable hereunder if such Indemnifying Person has not been afforded reasonable time under the circumstances to review and comment on the applicable sections of the applicable Disclosure Document, and (z) no Indemnifying Person shall be liable in connection with the above with respect to any statement or omission or any failure of a Co-Lender to accurately transcribe any portion of the Covered Disclosure Information provided by such Indemnifying Person. (c) Borrower shall indemnify each Co-Lender and each of its respective officers, directors, partners, employees, representatives, agents and Affiliates against any liabilities to which such Co-Lender, each of its respective officers, directors, partners, employees, representatives involved in the origination of the Loan or the Securitization, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the liabilities arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of the Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such -123- Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there ~~may be legal defenses available to it that are different from or additional to those available to another~~ is an actual conflict of interest between the Indemnified ~~Person~~Parties seeking separate representation. (e) Without the prior written consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably withheld), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion -124- as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) above but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (Ai) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent ~~misrepresentation,~~ misrepresentation and (Bii) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt as to matters that arise due to facts or circumstances existing prior to satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Global Net Lease, Inc.)

Securitization Indemnification. (a) ~~Borrower understands~~ Borrowers understand that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ the Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ Borrowers agree to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A) Borrower has~~ the Borrowers have carefully examined ~~the Disclosure Documents~~such memorandum or prospectus, ~~including~~as applicable, including without limitation, the sections entitled ~~“Risk Factors,” “~~"Special Considerations,~~” “~~" "Description of the ~~Collateral~~Mortgages,~~” “~~" "Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,~~” “~~" "The ~~Operating Company~~Manager,~~” “~~" "The ~~Borrower”~~ Borrowers" and “"Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” " and ~~(B)~~ such sections (and ~~such~~ any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any Affiliate~~ the affiliate of ~~JPM or a Noteholder~~ Xxxxxx Brothers Inc. ("Xxxxxx") that has filed ~~any~~ the registration statement relating to the ~~Securitization or has acted as~~ securitization (the ~~sponsor or depositor in connection with~~ "Registration Statement"), each of its directors, each of its officers who have signed the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, Registration Statement and each ~~of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person~~ person or entity who controls ~~any such Person~~ the affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”~~"Xxxxxx Group"), and Xxxxxx, each of its directors and each person who controls Xxxxxx within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "Underwriter Group") for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “"Liabilities”)") to which ~~any such Indemnified Person~~ Lender, the Xxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the ~~Covered Disclosure Information~~ omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Xxxxxx Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Xxxxxx in connection with investigating or defending the Liabilities; provided, however, that the Borrowers will be liable in any such case under clauses (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of the Borrowers in connection with the preparation of the memorandum or prospectus or in connection with the underwriting of the debt, including, without limitation, financial statements of the Borrowers, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrowers may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by the Borrowers or their Affiliates if the Borrowers do not provide the indemnification certificate. (c) In connection with filings under the Exchange Act, Borrowers agree to indemnify (i) Lender, the Xxxxxx Group and the Underwriter Group for Liabilities to which Lender, the Xxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Xxxxxx Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Xxxxxx Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and ~~it shall notify Borrower~~ its notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel ~~reasonably~~ satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 9.2 the ~~defense of such claim or action, Borrower~~ indemnifying party shall ~~not~~ be ~~liable to the Indemnified Person~~ responsible for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreements provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Xxxxxx'x and Borrowers' relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrowers hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrowers and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Grove Property Trust)

Securitization Indemnification. (a) Each Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to ~~the~~ a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees to provide~~Upon Lender’s reasonable request, Borrowers shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) ~~Borrower has carefully~~ certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the ~~Disclosure Documents, including, without limitation~~Loan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, ~~Borrower, Mortgage Borrower~~the IP, the Collateral, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Managers, the ~~“Covered Disclosure Information”) do~~ Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying ~~Lender, each Noteholder, JPM (whether~~ Lender or ~~not it is the Lender),~~ any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages~~, liabilities, costs~~ ) or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the ~~Covered Disclosure Information~~ Properties, the IP, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state ~~in the Covered Disclosure Information~~ therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements ~~in the Covered Disclosure Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Person in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of~~ Borrowers will be liable in any such case under clauses (B) or ~~based upon the Covered Disclosure Information~~ (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by ~~or on behalf of Borrower~~ Borrowers in connection with the preparation of ~~the~~ any Disclosure ~~Documents~~ Document(s) or in connection with the underwriting or ~~the~~ closing of the Loan ~~(including~~ or in the ordinary course of the Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an a separate indemnification agreement ~~described in clause (i) above~~ is provided. (c) In connection with ~~filings under the~~ Exchange Act ~~(if any)~~Filings, ~~Borrower agrees to indemnify~~ Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified ~~Person~~ Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the ~~Covered Disclosure Information~~Loan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in ~~the Covered~~ any such Disclosure ~~Information~~ Document a material fact in any Loan Party’s actual knowledge, required to be stated ~~therein or necessary~~ in such Disclosure Document in order to make the statements in ~~the Covered~~ such Disclosure ~~Information~~Document, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified ~~Persons, as they are incurred,~~ Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties. (d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of ~~any claim or~~ the commencement of any action, ~~the~~ such Indemnified Person ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrowers under this Section 9.3, notify ~~Borrower~~ Borrowers in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that the failure~~ omission to so notify ~~Borrower shall~~ Borrowers will not relieve it any Borrower from any liability which it any Borrower may have ~~under the indemnification provisions of this Section 9.2~~ to any Indemnified Person hereunder except to the extent that ~~it has been materially prejudiced by~~ such ~~failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes material prejudice to any ~~liability which it may have to an Indemnified Person otherwise than under~~ Borrower. In the ~~provisions of this Section 9.2. If~~ event that any ~~such claim or~~ action ~~shall be~~ is brought against an any Indemnified Person, and it ~~shall notify Borrower~~ notifies Borrowers of the commencement thereof, ~~Borrower shall~~ Borrowers will be entitled to participate therein and, to the extent that ~~it wishes~~they may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to ~~the~~ such Indemnified Person. After notice from ~~any Borrower~~ Borrowers to an such Indemnified Person ~~of its election to assume the defense of~~ under this Section 9.3, such ~~claim or action, Borrower shall not be liable to the~~ Indemnified Person shall pay for any legal or other expenses subsequently incurred by ~~the~~ such Indemnified Person in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ Indemnified Person and ~~one or more Indemnified Persons on~~ any Borrower and the ~~other hand, and an~~ Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or ~~in addition~~ additional to those available to ~~Borrower~~Borrowers, the Indemnified ~~Person or Persons~~ Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified ~~Person or Persons~~Person(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such~~ any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ Lender, (which consent shall not be unreasonably withheld), no Borrower shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ Borrowers shall have given ~~such Indemnified Person~~ Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceeding. As long as ~~Borrower has~~ Borrowers have complied with ~~its~~ their obligations to defend and indemnify hereunder, ~~Borrower~~ Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ Borrowers (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section ~~9.2~~ 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section ~~9.2~~9.3), then ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~Borrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of ~~Borrower~~Borrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section ~~9.2~~9.3, ~~(A)~~ no ~~party~~ Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other ~~party~~ Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ Borrowers further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~9.3. (h) ~~The~~ Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of ~~the Indemnified Persons~~ Borrowers and ~~Borrower~~ Lender under this Section ~~9.2~~ 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections ~~and such other information in~~ of the Disclosure Documents regarding the Property, Borrower, Manager and/or the Loan (to the extent such information relates to or includes any Provided ~~Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Information) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (B) that the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender~~, each Noteholder, JPM (whether or not it is the Lender)~~, any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, ~~co-~~co- placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Person” and collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any of the ~~Covered~~ Disclosure ~~Information~~ Documents, but only to the extent based upon Provided Information, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrower after Borrower has had an opportunity to review the Disclosure Document, or arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated therein or necessary in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the ~~Covered Disclosure~~ Provided Information, or the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated therein or necessary in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrower after Borrower has had an opportunity to review such filing under the Exchange Act, and (ii) to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably withheld), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceeding. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably withheld). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The rights, liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Maguire Properties Inc)

Securitization Indemnification. (a) ~~Borrower understands~~ Borrower, Operating Lessee and each other Loan Party understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the ~~Securities and~~ Exchange Act ~~of 1934, as amended (the “Exchange Act”),~~ or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, ~~Borrower~~ Borrower, Operating Lessee and the other Loan Parties will cooperate with the holder of the Note in updating the Covered Disclosure ~~Document~~ Information by providing all current information necessary to keep the Covered Disclosure ~~Document~~ Information accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) ~~Borrower agrees~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) ~~Borrower has~~ the Indemnifying Persons have, at the Lender’s request in connection with each Securitization, carefully examined the structural and collateral term sheet and those sections of the Disclosure ~~Documents, including, without limitation, the sections~~ Documents entitled “~~Risk Factors,” “Special Considerations~~Description of the Properties,” “Description of the ~~Collateral~~Loan Parties,” “Description of the Property Manager, Management Agreement and Assignment and Subordination of Management Agreement” (to the extent any Manager is an Affiliated Manager), “Description of the Mortgage Loan,” “Description of the Mezzanine ~~Loans,”~~ Loan”, “~~The Operating Company,” “The Borrower”~~ Annex E – Representations and Warranties of the Borrowers”, and “~~Certain Legal Aspects of the Mezzanine Loans,” and~~ Risk Factors (~~B) such sections and such other information in the Disclosure Documents (~~solely to the extent ~~such information relates~~ the “Risk Factors” relate to ~~or includes any Provided Information or any information regarding the Properties,~~ Borrower, ~~Mortgage Borrower~~Operating Lessee, any other Loan Party, Guarantor, Indemnitor, Affiliated Manager, Mezzanine Borrower and the Collateral~~, the Senior Mezzanine Collateral and/or Operating Company~~) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (ii) the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying ~~Lender, each Noteholder, JPM (whether or not it is~~ the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified ~~Persons”),~~ Persons for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which ~~Borrower~~ the Indemnifying Persons may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification agreement described in clause (iA) above is provided. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to ~~indemnify~~ (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~any Indemnifying Person, notify ~~Borrower~~ such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ any Indemnifying Person thereof, ~~Borrower~~ such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any ~~Borrower~~ Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ the Indemnifying Person is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ No Indemnifying Person shall ~~not~~ be liable for the expenses of more than one (1) such separate counsel and local counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior written consent of ~~the Indemnified Person in question~~ Lender or its designee (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ no Indemnifying Person shall ~~not~~ settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person shall have given ~~such Indemnified Person~~ Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceedings and does not include a statement as to, or admission of, fault, culpability or a failure to act by or on behalf of any Indemnified Person. As long as ~~Borrower~~ an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ such Indemnifying Person (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (f) ~~Borrower agrees~~ The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of ~~Borrower~~the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) ~~Borrower agrees~~ The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ The Indemnifying Persons further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and ~~Borrower~~ the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, ~~Borrower~~ Borrower, Operating Lessee and the other Loan Parties shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization. (j) Borrower shall jointly and severally indemnify the Lenders and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates against any Liabilities to which any such Lender, each of their respective officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Liabilities arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of the Borrowers to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Samples: Loan Agreement (BRE Select Hotels Corp)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with ~~the~~ any Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Approved Rating Agencies, and service providers relating to ~~the~~ any Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in ~~updating the Disclosure Document by~~ providing ~~all~~ current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent such information is in Borrower’s ~~possession~~possession or control. (b) Borrower agrees to cause Parent to provide, in connection with ~~the~~ any Securitization, an indemnification agreement (a “Securitization Indemnification Agreement”) (i) certifying that (A) ~~Borrower~~ Parent has ~~carefully~~ examined the Covered Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Information and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure ~~Information”) do not~~ Information does not, as of the date of the related disclosure document or as of the date of pricing the Securitization, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, ~~each Noteholder, JPM (whether or not it is the Lender),~~ any Affiliate of ~~JPM or a Noteholder~~ Lender that has filed any registration statement relating to ~~the~~ any Securitization or has acted as the sponsor or depositor in connection with ~~the~~ any Securitization, any ~~Affiliate of JPM or a Noteholder~~ Person that acts as an underwriter, placement ~~agent or initial purchaser of Securities issued in the Securitization~~agent, any other co-~~underwriters,~~ underwriters or co-placement ~~agents or co-initial purchasers of Securities issued in the Securitization~~agents, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who ~~controls~~ Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (~~including,~~ including without ~~limitation,~~ limitation legal fees and expenses for enforcement of these ~~obligations~~ obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified ~~Person, as they are incurred,~~ Person in connection with investigating or defending the ~~Liabilities~~ Liabilities; provided, however, that ~~Borrower shall have liability with respect to Liabilities arising out of~~ Parent will be liable in any such case under clauses (ii) or ~~based upon the Covered Disclosure Information~~ (iii) above only to the extent that any such Liabilities arise out of or ~~are~~ is based upon any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance upon and in conformity with (1) the written information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the ~~preparation of the Disclosure Documents or in connection with the~~ underwriting or ~~the~~ closing of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Parent, operating statements and rent rolls with respect to the ~~Properties),~~ Properties and (2) those portions of the Disclosure Documents furnished to and approved by Parent in ~~no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided~~ the certificate furnished pursuant to ~~Borrower for comment at least five~~ clause (5i) ~~Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)~~above. This indemnity agreement will be in addition to any liability which ~~Borrower~~ any Relevant Party may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be ~~effective~~ effective, valid and binding obligations of Borrower, whether or not an indemnification agreement described in clause (i) above is provided. (c) ~~In connection with filings under the Exchange Act (if any)~~Any Securitization Indemnification Agreement shall provide that, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against ~~Borrower~~Parent, notify ~~Borrower~~ Parent in writing of the claim or the commencement of that action; provided, however, that the failure to notify ~~Borrower~~ Parent shall not relieve it from any liability which it may have under the indemnification provisions of this Section ~~9.2~~ 8.2 except to the extent that it has been materially prejudiced by such failure and, ~~provided, further,~~ provided further that the failure to notify ~~Borrower~~ Parent shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section ~~9.2~~8.2. If Any Securitization Indemnification Agreement shall provide that, if any such claim or action shall be brought against an Indemnified Person, and it shall notify ~~Borrower~~ Parent thereof, ~~Borrower~~ Parent shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. ~~After~~ Any Securitization Indemnification Agreement shall provide that, after notice from ~~any Borrower~~ Parent to an the Indemnified Person of its election to assume the defense of such claim or action, ~~Borrower~~ Parent shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both ~~Borrower~~Parent, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to ~~Borrower~~Parent, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. ~~The~~ Any Securitization Indemnification Agreement shall provide that, the Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which ~~Borrower~~ Parent is required hereunder to indemnify such Indemnified Person. ~~Borrower~~ Any Securitization Indemnification Agreement shall provide that, Parent shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (ed) ~~Without~~ Any Securitization Indemnification Agreement shall provide that, without the prior written consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably ~~withheld~~withheld or delayed), ~~Borrower~~ Parent shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless ~~Borrower~~ Parent shall have given ~~such Indemnified Person~~ Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or ~~proceedings~~proceedings and such settlement requires no statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of each Indemnified Person. As Any Securitization Indemnification Agreement shall provide that, as long as ~~Borrower~~ Parent has complied with its obligations to defend and indemnify hereunder, ~~Borrower~~ Parent shall not be liable for any settlement made by any Indemnified Person without the consent of ~~Borrower~~ Parent (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (fe) ~~Borrower agrees~~ Any Securitization Indemnification Agreement shall provide that, Parent will agree that if any indemnification or reimbursement ~~sought pursuant to~~ described in this Section ~~9.2~~ 8.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are ~~the subject of~~ described in this Section ~~9.2~~8.2), then ~~Borrower~~Parent, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~Parent, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of ~~Borrower~~Parent, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. ~~Notwithstanding~~ Any Securitization Indemnification Agreement shall provide that, notwithstanding the provisions of described in this Section ~~9.2~~8.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) ~~Borrower agrees~~ Parent will agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this ~~paragraph~~ Section 8.2(e) exceed the amount of the fees ~~(by underwriting discount or otherwise)~~ actually received by the Indemnified Persons in connection with the closing of the ~~Loan or the Securitization~~Loan. (gf) ~~Borrower agrees~~ Any Securitization Indemnification Agreement shall provide that, Parent will agree that the indemnification, contribution and reimbursement obligations set forth in this Section ~~9.2~~ 8.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. ~~Borrower~~ Any Securitization Indemnification Agreement shall provide that, Parent will further ~~agrees~~ agree that the Indemnified Persons are intended third party beneficiaries under this Section ~~9.2~~8.2. (hg) ~~The~~ Any Securitization Indemnification Agreement shall provide that, the liabilities and obligations of the Indemnified Persons and ~~Borrower under~~ Parent described in this Section ~~9.2~~ 8.2 shall survive the termination of such Securitization Indemnification, this Agreement and the satisfaction and discharge of the Debt. (ih) Notwithstanding anything to the contrary contained herein, none of Borrower or any of its Affiliates shall have no any obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Altisource Residential Corp)

Securitization Indemnification. (a) Borrower ~~understands~~ and Borrower Principal understand that certain of the Provided Information may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act ~~of 1933, as amended (the “Securities Act”),~~ or the ~~Securities and Exchange Act of 1934, as amended (the “~~Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower ~~agrees~~ and Borrower Principal agree to ~~provide,~~ provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Securitization~~Property and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification ~~agreement~~ certificate (iA) certifying that ~~(A)~~ Borrower ~~has~~ and Borrower Principal have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Disclosure Documents~~Property and/or the Loan), ~~including~~as applicable, including without limitation, the sections entitled “~~Risk Factors,” “~~Special Considerations,” and/or “~~Description of the Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” or similar sections, and ~~(B)~~ all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and ~~such~~ any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 13.5, ~~each Noteholder, JPM (whether or not it is~~ Lender hereunder shall include its officers and directors) and the ~~Lender), any~~ Affiliate of ~~JPM or a Noteholder~~ Lender that (i) has filed ~~any~~ the registration ~~statement~~ statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or ~~has acted as the sponsor or depositor in connection with the Securitization~~(ii), ~~any Affiliate of JPM or a Noteholder that acts as~~ an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of ~~their respective officers~~any Issuer Person, ~~directors, partners, employees, representatives, agents and Affiliates~~ and each Person or entity who controls any ~~such~~ Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Issuer Group”), ~~for~~ and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any ~~losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees~~ such Person within the meaning of Section 15 of the Securities Act and ~~expenses for enforcement~~ Section 20 of ~~these obligations~~ the Exchange Act (collectively, the “~~Liabilities~~Underwriter Group”)) for any Losses to which ~~any such Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group may become subject insofar as the ~~Liabilities~~ Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Covered Disclosure Information~~ Property and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or necessary in order to make the statements in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate. (c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure~~ Provided Information a material fact required to be stated ~~therein or necessary~~ in the Provided Information in order to make the statements in the ~~Covered Disclosure~~ Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 13.5 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 13.5, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume~~ such indemnified party under this Section 13.5 the ~~defense of such claim or action, Borrower~~ indemnifying party shall ~~not~~ be ~~liable to the Indemnified Person~~ responsible for any reasonable legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person~~ indemnified party or ~~Persons~~parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1)~~ such separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreements provided for in ~~question (which consent shall not~~ Section 13.5(c) or Section 13.5(d) is or are for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder (whether~~ indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11 (f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower, Borrower Principal and ~~Borrower~~ Lender under this Section ~~9.2~~ 13.5 shall survive the ~~termination~~ satisfaction of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (American Assets Trust, Inc.)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower and its agents, counsel and representatives may be included in ~~Disclosure Documents~~ disclosure documents in connection with the ~~Securitization~~ Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), ~~or provided or~~ and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower ~~agrees to provide,~~ shall provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has ~~carefully~~ examined the ~~Disclosure Documents, including, without limitation, the~~ sections ~~entitled “Risk Factors,” “Special Considerations,” “Description~~ of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (delivered by Lender to ~~the extent such information relates~~ Borrower relating solely to ~~or includes any Provided Information or any information regarding the Properties,~~ Borrower, ~~Mortgage Borrower~~Borrower Affiliates, the ~~Collateral~~Property, and the ~~Senior Mezzanine Collateral and/or Operating Company)~~ Manager (~~collectively with the Provided Information,~~ the “~~Covered Disclosure Information~~Specified Sections”) ), and that such Specified Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not ~~misleading~~misleading or specifying such untrue statement (it being agreed that Borrower shall not be required to review any other sections of the Disclosure Document other than the Specified Sections), (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Xxxxxxx Xxxxx & Co., Inc. (“Xxxxxxx”) that has filed ~~any~~ the registration statement relating to the Securitization ~~or has acted as~~ (the ~~sponsor or depositor in connection with the Securitization~~“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of ~~their respective officers,~~ its directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its officers who have signed the Registration Statement and each Person ~~or entity who~~ that controls ~~any such Person~~ the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Xxxxxxx Group”), Xxxxxxx, any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Xxxxxxx or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, ~~damages, liabilities, costs~~ damages or ~~expenses (including, without limitation, legal fees and expenses for enforcement of these obligations~~ liabilities (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Xxxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such Specified Sections or arise out of or are based upon the ~~Covered~~ omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such Specified Sections, in light of the circumstances under which they were made, not misleading (it being agreed that Borrower shall not be responsible for any losses which would not have been suffered if Lender had corrected any statements contained in the Specified Sections identified by Borrower in writing to have been untrue or misleading) and (C) agreeing to reimburse Lender, the Xxxxxxx Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Xxxxxxx Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender in its capacity as “lender” hereunder by or on behalf of Borrower in connection with the preparation of the Disclosure ~~Information~~ Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property and provided further, however, that with respect to statements made in such Specified Sections that are based upon information provided by third parties, Borrower will be liable only if Borrower knew that such information was false or omitted to state a material fact known to Borrower and necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. (c) In connection with Exchange Act Filings, Borrower shall (i) indemnify Lender, the Xxxxxxx Group and the Underwriter Group for Liabilities to which Lender, the Xxxxxxx Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the ~~Covered Disclosure Information~~ Specified Sections a material fact required to be stated ~~therein or necessary~~ in the Specified Sections in order to make the statements in the ~~Covered Disclosure Information~~Specified Sections, in light of the circumstances under which they were made, not misleading and (~~iii~~ii) ~~agreeing to~~ reimburse ~~each Indemnified Person~~ Lender, the Xxxxxxx Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred,~~ the Xxxxxxx Group or the Underwriter Group in connection with defending or investigating ~~or defending~~ the ~~Liabilities provided, however, that~~ Liabilities. Borrower ~~shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information~~ will be liable in any such case under this Section 9.2(c) only to the extent that any such ~~Liabilities arise~~ liability arises out of or ~~are~~ is based upon any such untrue statement or omission made in the ~~Covered Disclosure Information~~ Specified Sections in reliance upon and in conformity with information furnished to Lender ~~or such Noteholder~~ by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting ~~or the closing~~ of the ~~Loan (including~~ Loan, including, without ~~limitation~~ limitation, financial statements of ~~Borrower and~~ Borrower, operating statements and rent rolls with respect to the ~~Properties)~~Property, ~~and~~ provided, however, that with respect to statements made in ~~no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document~~ the Specified Sections that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon ~~any untrue statement~~ information provided by third parties, Borrower will be liable only if Borrower knew that such information was false or ~~alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission~~ omitted to state ~~in the Covered Disclosure Information~~ a material fact ~~required~~ known to ~~be stated therein or~~ Borrower and necessary in order to make the statements ~~in the Covered Disclosure Information~~made, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilitiesmisleading. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 9.2, notify ~~Borrower~~ the indemnifying party in writing of the ~~claim or~~ commencement thereof, but the ~~commencement of that action; provided, however, that~~ omission to so notify the ~~failure to notify Borrower shall~~ indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have ~~under the indemnification provisions of this Section 9.2~~ to any indemnified party hereunder except to the extent that ~~it has been materially prejudiced by such failure and, provided, further, that the~~ failure to notify ~~Borrower shall not relieve it from~~ causes prejudice to the indemnifying party. In the event that any ~~liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or~~ action ~~shall be~~ is brought against ~~an Indemnified Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the indemnifying party of the commencement thereof, ~~Borrower shall~~ the indemnifying party will be ~~entitled~~ entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it ~~wishes~~(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to ~~the Indemnified Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified party under this Section 9.2, ~~Borrower~~ such indemnified party shall ~~not be liable to the Indemnified Person~~ pay for any legal or other expenses subsequently incurred by ~~the Indemnified Person~~ such indemnified party in connection with the defense thereof ~~except as provided in the following sentence~~other than reasonable costs of investigation; provided, however, if the defendants in any such action include both ~~Borrower, on~~ the ~~one hand,~~ indemnified party and ~~one or more Indemnified Persons on~~ the ~~other hand,~~ indemnifying party and ~~an Indemnified Person~~ the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other ~~Indemnified Persons~~ indemnified parties that are different from or ~~in addition~~ additional to those available to ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such ~~Indemnified Person or Persons~~indemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one ~~(1) such~~ separate counsel unless ~~such Indemnified Person~~ an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another ~~Indemnified Person~~indemnified party. (e) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity agreement provided for in ~~question~~ Section 9.2(b) or (~~which consent shall not~~ c) is for any reason held to be ~~unreasonably withheld), Borrower shall not settle or compromise or consent~~ unenforceable as to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which ~~indemnification may~~ would otherwise be ~~sought hereunder~~ indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), ~~then Borrower, on~~ the ~~one hand, and such Indemnified Person, on the other hand,~~ indemnifying party shall contribute to the ~~Liabilities for which~~ amount paid or payable by the indemnified party as a result of such ~~indemnification~~ losses, claims, damages or ~~reimbursement is held unavailable~~ liabilities (or ~~is insufficient: (x)~~ action in ~~such proportion as is appropriate to reflect the relative benefits to Borrower~~respect thereof); provided, ~~on the one hand~~however, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any ~~other party~~ Person who is was not ~~also found liable for~~ guilty of such fraudulent misrepresentation~~, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed~~ . In determining the amount of contribution to which the ~~fees~~ respective parties are entitled, the following factors shall be considered: (i) Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per capita allocation. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (hf) The liabilities and obligations of ~~the Indemnified Persons~~ both Borrower and ~~Borrower~~ Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.

Appears in 1 contract

Samples: Loan Agreement (Behringer Harvard Reit I Inc)

Common use of Securitization Indemnification Clause in Contracts