Indemnification of the Seller. the Backup Servicer, the Collateral Custodian, the Deal Agent and the Purchasers. The Servicer shall indemnify and hold harmless the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent and each Purchaser and their respective officers, directors, employees and agents (collectively, the "Indemnified Persons") from and against any loss, liability, expense, damage or injury suffered or sustained by any Indemnified Person by reason of any acts, omissions or alleged acts or omissions of the Servicer, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and (ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Resource America Inc), Receivables Purchase Agreement (Fidelity Leasing Inc)
Indemnification of the Seller. Subject to the Backup Servicerprovisions of this Section 13 and subject to the terms of any subsequent agreement entered into between the Guarantor and/or its Affiliates and the Purchaser, the Collateral CustodianPurchaser agrees to defend, the Deal Agent and the Purchasers. The Servicer shall indemnify and hold harmless the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent Seller and each Purchaser its Affiliates and their respective officers, directors, agents, employees and agents representatives and the respective successors and assigns of each of the foregoing (collectivelythe “Seller Indemnitees”), the "Indemnified Persons") from and against any loss, liability, expense, damage or injury suffered or sustained by any Indemnified Person by reason regardless of any actsinvestigation made at any time by or on behalf of any Seller Indemnitee or any information any Seller Indemnitee may have, omissions against and in respect of any Losses incurred by the Seller Indemnitees arising out of or alleged acts or omissions resulting from:
(a) a breach of any of the Servicerrepresentations or warranties made by the Purchaser in Section 5 of this Agreement or in the certificate delivered pursuant to Section 8.3;
(b) a breach of any of the covenants or agreements made or to be performed by the Purchaser or its successors pursuant to this Agreement;
(c) to the extent not subject to the Seller’s duty to indemnify the Purchaser pursuant to Section 13.2, includingany Action brought or claim made by a Third Party resulting from the use of Seller Marks by the Purchaser or the Operating Company after the Closing;
(d) to the extent not subject to Seller’s duty to indemnify Purchaser pursuant to Section 13.2, but any liability or obligation including under or relating to Environmental Laws or Hazardous Substances (other than Excluded Liabilities) of any nature or kind, known or unknown, fixed, accrued, absolute or contingent, or any claim, demand or condition asserted with respect to the operation of the Packaged Gas Business or the Operating Company by the Purchaser or the Operating Company arising out of events occurring after the Closing Date or the Purchaser’s or any of its Affiliates’ ownership, control or operation of the Operating Company and the Packaged Assets after the Closing;
(e) to the extent not limited subject to the Seller’s duty to indemnify the Purchaser pursuant to Section 13.2, Losses arising on or after the Closing Date under the Packaged Contracts and the Real Property Leases other than liabilities, obligations and expenses arising out of or relating to any judgment, award, settlement, reasonable attorneys' fees and other costs breach or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and (ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid default by the Seller, the Backup Servicer, Operating Company or any of their respective Affiliates prior to the Collateral Custodian, Closing of any of their respective obligations under the Deal Agent, Contracts or Real Property Leases; or
(f) to the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party extent not subject to the limitations hereof. If Seller’s duty to indemnify the Servicer has made any indemnity payment Purchaser pursuant to this Section 8.1 13.2, Losses (including any Environmental Liabilities and such payment fully indemnified any Actions) related to or arising out of the recipient thereof Purchaser’s, the Operating Company’s, or any of their Affiliates’ (or any of their successors’) conduct of the Packaged Gas Business after the Closing Date or the Purchaser’s or any of its Affiliates’ ownership, control or operation of the Operating Company and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, Packaged Assets after the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the AssetsClosing. The obligations of the Servicer under Purchaser hereunder shall bind the successors and assigns of the Purchaser, including any acquiror of all or substantially all of its assets. For all purposes of this Section 6.19 shall survive the resignation or removal 13.5, a breach of the Deal AgentPurchaser’s representations and warranties shall be determined without regard to any limitation or qualification as to “materiality”, “material”, “materially” or “material adverse effect” set forth in such representation or warranty. For the avoidance of doubt, the Liquidity Agentterm “Material” in the definition names of “Business Material Adverse Effect”, the Backup Servicer or the Collateral Custodian “Material Contracts”, “Material Customers” and the termination of this Agreement“Material Permits” shall not be disregarded (i.e., “Material Contracts” shall not be deemed “Contracts”).
Appears in 1 contract
Indemnification of the Seller. the Backup ServicerPurchaser shall be responsible for and shall indemnify, the Collateral Custodiandefend, the Deal Agent and the Purchasers. The Servicer shall indemnify and hold harmless the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent and each Purchaser and their respective Seller's officers, directors, employees shareholders, servants, employees, agents, attorneys, representatives, and agents Affiliates, and their respective heirs, executors, successors and assigns (collectively, the "Indemnified PersonsSeller Indemnitees") from from, against, and against with respect to any loss, liability, expense, damage and all Claims or injury Costs suffered or sustained by any Indemnified Person such Seller Indemnitees, as result of, caused by, arising out of, directly or indirectly, or in any way relating to: (i) the Post-Closing Xxxxxxxx Obligations or (ii) a breach by reason Purchaser of any actsrepresentation, omissions warranty, covenant or alleged acts or omissions obligation set forth in this Agreement that is intended to survive the Closing of the Servicertransactions contemplated by this Agreement (herein collectively referred to as the "Liabilities to be Indemnified by Purchaser"); provided, includingthat Purchaser shall not be obligated to indemnify any of the Seller Indemnitees for any Liability that also constitutes a Liability to be Indemnified by Seller and Xxxxxxx to the extent that such Liability is a Liability to be Indemnified by Seller and Xxxxxxx; and provided, but further, that Purchaser shall not limited be obligated to any judgmentindemnify the Seller Indemnitees until the Liabilities to be Indemnified by Purchaser exceed on a cumulative basis the Threshold Amount, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with then only to the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses extent of any such Liabilities to be Indemnified Party or other non-monetary damages by Purchaser sustained by the Seller Indemnitees are in excess of any such Indemnified Party. Notwithstanding the foregoingThreshold Amount; and provided, the Servicer further, that Purchaser shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result be obligated to pay in excess of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and (ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If Cap for any reason the indemnification provided above in this Section 6.19 is unavailable all Liabilities to the be Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this AgreementPurchaser hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Excalibur Industries Inc)
Indemnification of the Seller. the Backup Servicer(a) The Purchaser hereby agrees to defend, the Collateral Custodianindemnify, the Deal Agent and the Purchasers. The Servicer shall indemnify and hold harmless the SellerSeller and its Affiliates, and each of their respective directors, managers, officers, employees, representatives, agents, successors and assigns (individually, and collectively, the Backup Servicer"Seller Indemnified Parties") against and in respect of any and all Losses caused by or resulting or arising from (i) the breach by the Purchaser of any of its covenants or agreements hereunder or under any of the Transaction Documents; and (ii) the breach or inaccuracy of any of the representations or warranties made by the Purchaser herein (including in any Exhibit or Schedule) or in any Transaction Documents.
(b) The Seller Indemnified Parties shall promptly after any of them becomes aware of any circumstance which might reasonably be expected to become the subject matter of a claim to be made by any of them against the Purchaser under this Agreement (a "Seller Claim"), advise the Purchaser of such circumstance, and shall afford the Purchaser, from time to time, such information as the Purchaser shall reasonably request in connection therewith; provided that any delay or failure to so advise the Purchaser shall not relieve the Purchaser from any liability except to the extent that the defense of such Seller Claim is prejudiced by such delay or failure.
(c) Notwithstanding anything to the contrary contained herein, the Collateral CustodianPurchaser shall not be liable to Seller Indemnified Parties with respect to claims for indemnification for breaches of representations and warranties hereunder pursuant to Section 9.02(a):
(i) to the extent that the aggregate of all amounts indemnifiable hereunder exceeds the General Indemnity Cap, except that the Deal Agentforegoing limitations shall not apply with respect to fraud or to claims respecting breaches of the representations and warranties set forth in Section 4.04 (Corel Shares), the Liquidity Agent and each Purchaser and their respective officers, directors, employees and agents (collectively, the "Indemnified PersonsPurchaser Specified Representations") from and against any loss, liability, expense, damage or injury suffered or sustained by any Indemnified Person by reason of any acts, omissions or alleged acts or omissions of the Servicer, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and );
(ii) under any Tax lawunless and until the aggregate amounts indemnifiable for such breaches exceeds the Threshold, at which time all such amounts (including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income those below the Threshold) shall be indemnifiable (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If General Indemnity Cap); and
(iii) unless such claim is asserted in writing on or prior to the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any applicable Survival Expiration Date, if any.
(d) Seller Claims shall be satisfied exclusively by cash payments from others in respect of such Indemnified Amounts, the recipient shall repay Purchaser to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this AgreementSeller.
Appears in 1 contract
Indemnification of the Seller. the Backup Servicer(a) The Purchaser hereby agrees to defend, the Collateral Custodianindemnify, the Deal Agent and the Purchasers. The Servicer shall indemnify and hold harmless the SellerSeller and its Affiliates, and each of their respective directors, managers, officers, employees, representatives, agents, successors and assigns (individually, and collectively, the Backup Servicer"Seller Indemnified Parties") against and in respect of any and all Losses caused by or resulting or arising from (i) the breach by the Purchaser of any of its covenants or agreements hereunder or under any of the Transaction Documents; and (ii) the breach or inaccuracy of any of the representations or warranties made by the Purchaser herein (including in any Exhibit or Schedule) or in any Transaction Documents.
(b) The Seller Indemnified Parties shall promptly after any of them becomes aware of any circumstance which might reasonably be expected to become the subject matter of a claim to be made by any of them against the Purchaser under this Agreement (a "Seller Claim"), advise the Purchaser of such circumstance, and shall afford the Purchaser, from time to time, such information as the Purchaser shall reasonably request in connection therewith; provided that any delay or failure to so advise the Purchaser shall not relieve the Purchaser from any liability except to the extent that the defense of such Seller Claim is prejudiced by such delay or failure.
(c) Notwithstanding anything to the contrary contained herein, the Collateral CustodianPurchaser shall not be liable to Seller Indemnified Parties with respect to claims for indemnification for breaches of representations and warranties hereunder pursuant to Section 9.02(a):
(i) to the extent that the aggregate of all amounts indemnifiable hereunder exceeds the General Indemnity Cap, except that the Deal Agentforegoing limitations shall not apply with respect to fraud or to claims respecting breaches of the representations and warranties set forth in Section 4.04 Corel Shares, the Liquidity Agent and each Purchaser and their respective officers, directors, employees and agents (collectively, the "Indemnified PersonsPurchaser Specified Representations") from and against any loss, liability, expense, damage or injury suffered or sustained by any Indemnified Person by reason of any acts, omissions or alleged acts or omissions of the Servicer, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and );
(ii) under any Tax lawunless and until the aggregate amounts indemnifiable for such breaches exceeds the Threshold, at which time all such amounts (including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income those below the Threshold) shall be indemnifiable (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If General Indemnity Cap); and
(iii) unless such claim is asserted in writing on or prior to the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any applicable Survival Expiration Date, if any.
(d) Seller Claims shall be satisfied exclusively by cash payments from others in respect of such Indemnified Amounts, the recipient shall repay Purchaser to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this AgreementSeller.
Appears in 1 contract
Indemnification of the Seller. the Backup Servicer, the Collateral Custodian, the Deal Agent and the PurchasersCASTLE PC AND CASTLE. The Servicer Purchaser, for a period of one year after the Closing Date, shall indemnify and hold harmless the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent Castle PC and each Purchaser Castle and their respective officersAffiliates (the "Seller Indemnitees") harmless from and against any and all damages (including exemplary damages and including reasonable counsel fees and reasonable expenses of investigation, directors, employees defending and agents prosecuting litigation (collectively, the "Indemnified PersonsDamages") from and against any loss), liability, expense, damage or injury suffered or sustained by any Indemnified Person Seller Indemnitee as a result of, caused by, arising out of, or in any way relating to (a) any misrepresentation, breach of warranty, or nonfulfillment of any agreement or covenant on the part of the Purchaser under this Agreement or any misrepresentation in or omission from any list, schedule, certificate, or other instrument furnished or to be furnished to the Seller, Castle PC or Castle by reason the Purchaser pursuant to the terms of this Agreement or (b) any liability or obligation (other than those for which Purchaser is being indemnified by Seller, Castle PC and Castle hereunder) which pertains to the ownership, operation or conduct of the Business or Assets arising from any acts, omissions omissions, events, conditions or alleged acts or omissions of the Servicer, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and (ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax imposed circumstances occurring on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by after the SellerClosing Date; provided, however, that Seller Indemnitees in the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 aggregate shall not be interpreted entitled to provide recourse to make any recovery by way of indemnification for the initial $50,000 of Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) ofIndemnitees' claims for indemnification, or default by, related Obligor on, any Pool Asset. Any and Seller Indemnitees' aggregate recovery for indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this Agreementin any event exceed $650,000.
Appears in 1 contract
Samples: Asset Purchase Agreement (Castle Dental Centers Inc)
Indemnification of the Seller. the Backup ServicerTHE INDENTURE TRUSTEE, THE OWNER TRUSTEE, THE MASTER SERVICER AND THE SECURITIES ADMINISTRATOR.
(a) In addition to any indemnity required pursuant to Section 3.22 hereof, the Collateral CustodianMaster Servicer agrees to indemnify the Indemnified Persons for, the Deal Agent and the Purchasers. The Servicer shall indemnify and to hold them harmless the Selleragainst, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent and each Purchaser and their respective officers, directors, employees and agents (collectively, the "Indemnified Persons") from and against any loss, liability, expense, damage liability or injury suffered or sustained by any Indemnified Person by reason of any acts, omissions or alleged acts or omissions of the Servicer, including, but not limited expense (except as otherwise provided herein with respect to any judgment, award, settlement, expenses) (including reasonable attorneys' legal fees and other costs or expenses disbursements of counsel) incurred on their part that may be sustained in connection with, arising out of, or relating to this Agreement or the Securities (i) related to the Master Servicer's failure to perform its duties in compliance with the defense of this Agreement (except as any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage liability or injury results expense shall be otherwise reimbursable pursuant to this Agreement) or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and (ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss incurred by reason of the bankruptcy Master Servicer's willful misfeasance, bad faith or insolvency gross negligence in the performance of duties hereunder or by reason of reckless disregard of obligations and duties hereunder, provided, in each case, that with respect to any such claim or legal action (or other credit condition) ofpending or threatened claim or legal action), an Indemnified Person shall have given the Master Servicer and the Depositor written notice thereof promptly after such Indemnified Person shall have with respect to such claim or default by, related Obligor on, any Pool Assetlegal action knowledge thereof. Any indemnification pursuant The Indemnified Person's failure to this Section give such notice shall not be payable from affect the AssetsIndemnified Person's right to indemnification hereunder. The obligations of the Servicer under this Section 6.19 This indemnity shall survive the resignation or removal of the Deal AgentIndenture Trustee, the Liquidity AgentOwner Trustee, the Backup Master Servicer or the Collateral Custodian Securities Administrator and the termination of this Agreement.
(b) The Issuer will indemnify any Indemnified Person for any loss, liability or expense of any Indemnified Person not otherwise indemnified by the Master Servicer as referred to in Subsection (a) above, other than any loss, liability or expense incurred by reason of such Indemnified Person's willful misfeasance, bad faith or negligence (or, in the case of the Owner Trustee, gross negligence) in the performance of duties hereunder or under any Operative Agreement or by reason of reckless disregard of obligations and duties hereunder or under any Operative Agreement.
(c) In addition to any indemnity required pursuant to Section 3.22 hereof, the Securities Administrator agrees to indemnify the Indemnified Persons (other than the Securities Administrator) for, and to hold them harmless against, any loss, liability or expense (except as otherwise provided herein with respect to expenses) (including reasonable legal fees and disbursements of counsel) incurred on their part (i) in connection with, arising out of, or relating to the Securities Administrator's failure to file any Exchange Act report which the Securities Administrator is responsible for filing in accordance with Section 3.19, (ii) by reason of the Securities Administrator's negligence or willful misconduct in the performance of such obligations pursuant to Section 3.19 or (iii) by reason of the Securities Administrator's reckless disregard of such obligations pursuant to Section 3.19, provided, in each case, that with respect to any such claim or legal action (or pending or threatened claim or legal action), an Indemnified Person shall have given the Securities Administrator written notice thereof promptly after such Indemnified Person shall have with respect to such claim or legal action knowledge thereof. The Indemnified Person's failure to give such notice shall not affect the Indemnified Person's right to indemnification hereunder. This indemnity shall survive the resignation or removal of the Indenture Trustee, the Owner Trustee, the Master Servicer or the Securities Administrator and the termination of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (PHH Mortgage Trust, Series 2008-Cim2)
Indemnification of the Seller. (i) Subject to the Backup Servicerlimitations contained in this Section 8.4, the Collateral CustodianPurchaser agrees to indemnify, the Deal Agent and the Purchasers. The Servicer shall indemnify defend and hold harmless the SellerSeller and its Affiliates, the Backup Servicer(each, the Collateral Custodian, the Deal Agent, the Liquidity Agent and each Purchaser and their respective officers, directors, employees and agents (collectively, the a "Seller Indemnified PersonsParty") from and against any lossand all Losses which arise out of, liabilityor result from, expense, damage (A) any inaccuracy in or injury suffered or sustained by any Indemnified Person by reason material breach of any acts, omissions representation or alleged acts or omissions warranty of the ServicerPurchaser contained in this Agreement or in the officer's certificate delivered by Purchaser pursuant to Section 3.3(c)(i), including, but not limited to (B) any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense breach of any actual covenant or threatened actionagreement of the Purchaser contained in this Agreement, proceeding (C) any Assumed Liability or claim, but excluding allocations (D) liabilities incurred by the Seller resulting from the operation of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, Business after the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and Closing Date.
(ii) under Each Seller Indemnified Party shall give the Purchaser prompt written notice of any Tax lawclaim, including without limitation any federalassertion, state event or local income proceeding (collectively, a "Seller Claim") by or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of a third party of which such Seller Indemnified AmountsParty has knowledge concerning any Loss as to which such Seller Indemnified Party may request indemnification hereunder provided, however, that any failure to give such Seller Claim will not be deemed a waiver of any rights of the recipient shall repay Seller Indemnified Party except to the Servicer an amount equal to extent the amount it has collected from others in respect rights of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable Purchaser are prejudiced by such Indemnified Person failure or the Purchaser otherwise suffers damage as a result of such lossfailure. The Purchaser shall have the right to direct, claimthrough counsel of its own choosing reasonably acceptable to the Seller, damage the defense or liability settlement of any such Seller Claim at its own expense. If the Purchaser elects to assume the defense of any such Seller Claim, such Seller Indemnified Party may participate in such proportion as is appropriate to reflect not only defense, but in such case the relative benefits received expenses of such Seller Indemnified Party shall be paid by such Seller Indemnified Person on Party. Such Seller Indemnified Party shall provide the one hand Purchaser with access to its records and Servicer on personnel relating to any such Seller Claim during normal business hours and shall otherwise cooperate with the other hand but also Purchaser in the relative fault defense or settlement thereof, and the Purchaser shall reimburse such Seller Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Purchaser elects to direct the defense of any such Seller Claim, the Purchaser shall not pay, or permit to be paid, any part of any Loss arising from such Seller Claim, unless the Purchaser consents in writing to such payment or unless the Purchaser, subject to the last sentence of this subsection (b), withdraws from the defense of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not asserted liability, or unless a final judgment from which no appeal may be interpreted to provide recourse to the Seller against loss taken by reason or on behalf of the bankruptcy or insolvency (or other credit condition) ofPurchaser is entered against such Seller Indemnified Party for such Loss. If the Purchaser shall fail to defend any Seller Claim, or default byif, related Obligor onafter commencing or undertaking any such defense, fails to prosecute or withdraws from such defense, such Seller Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Purchaser's expense. If such Seller Indemnified Party assumes the defense of any Pool Asset. Any indemnification such Seller Claim pursuant to this Section subsection and proposes to settle such Seller Claim prior to a final judgment thereon or to forego appeal with respect thereto, then such Seller Indemnified Party shall not be payable from give the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian Purchaser prompt written notice thereof and the termination Purchaser shall have the right to participate in the settlement or assume or reassume the defense of this Agreementsuch Seller Claim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hearst Argyle Television Inc)
Indemnification of the Seller. the Backup Servicer, the Collateral Custodian, the Deal Agent and the Purchasers. The Servicer shall indemnify and hold harmless the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent and each Purchaser and their respective officers, directors, employees and agents (collectively, the "Indemnified Persons"a) from and against any loss, liability, expense, damage or injury suffered or sustained by any Indemnified Person by reason of any acts, omissions or alleged acts or omissions of the Servicer, including, but not limited Subject to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and (ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 7.03 and the other Sections of this Article 7, the Purchaser agrees to indemnify, defend and hold the Seller, and its Affiliates, officers, directors, employees, agents, successors and assigns, (each a “Seller Indemnified Party”), harmless from and against any and all Losses incurred or sustained by or imposed upon any of the Seller Indemnified Parties with respect to or by reason of:
(i) any failure, breach or inaccuracy by the Purchaser of any representations or warranties made by the Purchaser under this Agreement or the Ancillary Agreements or contained in any certificate, document or instrument delivered by the Purchaser hereunder; and
(ii) any breach, default or lack of performance on the part of the Purchaser of any of its covenants or agreements under this Agreement or the Ancillary Agreements.
(b) Notwithstanding anything to the contrary in this Agreement, the Seller Indemnified Parties shall not be interpreted entitled to indemnification with respect to a claim for indemnification under Section 7.03(a)(i) hereof, unless the Seller has given the Purchaser written notice of such claim, setting forth in reasonable detail the facts and circumstances pertaining thereto as soon as practicable following the discovery of such claim by the Seller Indemnified parties, but only to the extent that, as a result of any such failure to provide recourse notice, the Purchaser can demonstrate that its ability to defend against any Third Party Claim or mitigate the cost to the Purchaser of indemnifying such Seller against loss by reason Indemnified Party has been materially adversely affected; or
(c) With respect to claims for indemnification under Section 7.03(a)(i) hereof, unless the Seller Indemnified Parties have provided the Purchaser written notice of such claim and in all events prior to the expiration of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this AgreementSurvival Period.
Appears in 1 contract
Samples: Stock Purchase Agreement (Gibraltar Industries, Inc.)
Indemnification of the Seller. (a) Subject to the Backup Servicerlimitations set forth herein, from and after the Closing, the Collateral Custodian, the Deal Agent Buyer and the Purchasers. The Servicer Buyer Parent shall jointly and severally indemnify and hold harmless the Seller, the Backup ServicerPIDSG, the Collateral CustodianRepresentatives, the Deal Agentsuccessors, the Liquidity Agent and each Purchaser and their respective officers, directors, employees and agents permitted assigns (collectively, the "Indemnified Persons"“Seller Indemnitees”) from and against any loss, liability, expense, damage or injury suffered or sustained and all Losses incurred by any Indemnified Person by reason a Seller Indemnitee reasonably arising out of any acts, omissions or alleged acts or omissions of the Servicer, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or the breach of fiduciary duty any representation or warranty made by such Indemnified Person; the Buyer in this Agreement (provided that for purposes of determining whether a Loss occurred and its amount, all references to materiality, Material Adverse Effect, or other similar qualifiers contained in any of the representations and warranties of the Seller shall be disregarded), (ii) under the breach of any Tax lawcovenant, including without limitation any federal, state obligation or local income agreement made by the Buyer or franchise taxes or the Buyer Parent in this Agreement and any other Tax imposed on or measured Buyer Transaction Document, and (iii) the Assumed Liabilities.
(b) Notwithstanding the provisions of Section 9.3(a), the Buyer and the Buyer Parent shall have no Liability under Section 9.3(a)(i), unless and until the Losses incurred by income the Seller Indemnitees in the aggregate exceed the Indemnification Basket (or in which event the Buyer and the Buyer Parent shall be obligated to indemnify the Seller Indemnitees for all Losses from the first dollar), provided that the foregoing Indemnification Basket shall not apply to Losses related to any interest or penalties claim for indemnification with respect thereto to (i) any of the Buyer Excluded Claims, (ii) any of the items set forth in Section 9.3(a)(ii)-(iii), and (iii) fraud or arising from a failure to comply therewithintentional misrepresentation.
(c) required to be paid by The maximum aggregate Liability for the Seller, Buyer and the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions Buyer Parent under Section 9.3(a)(i) of this indemnity Agreement shall run directly be limited to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If Non-IP Indemnification Cap; provided that the foregoing Non-IP Indemnification Cap shall not apply to, and the Buyer and the Buyer Parent shall be responsible for any reason the Losses related to, any claim for indemnification provided above in this Section 6.19 is unavailable with respect to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as (i) any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy Buyer Excluded Claims and (ii) fraud or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this Agreementintentional misrepresentation.
Appears in 1 contract
Samples: Stock Purchase Agreement (Skyworks Solutions, Inc.)
Indemnification of the Seller. the Backup ServicerManaging Facility ---------------------------------------------------- Agent, the Collateral CustodianAdministrative Agent, the Deal Agent Co-Administrative Agents and the Purchaserseach ---------------------------------------------------------------------- Purchaser. The Servicer shall indemnify and hold harmless the Seller, the Backup Servicer, the Collateral Custodian, the Deal --------- Managing Facility Agent, the Liquidity Administrative Agent and each Purchaser and their respective officers, directors, employees and agents (collectively, the "Indemnified Persons") from and against any loss, liability, expense, damage or injury suffered or sustained by any Indemnified Person by reason of any acts, omissions or alleged acts or omissions of the ServicerServicer with respect to activities of the Seller or the Purchasers for which the Servicer is responsible pursuant to this Agreement, including those arising from acts or omissions of the Servicer pursuant to this Agreement, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, (i) the Servicer shall not indemnify an Indemnified Person the Seller, the Managing Facility Agent, the Administrative Agent, any Co-Administrative Agent or any Purchaser if such lossacts, liability, expense, damage omissions or injury results or arises (i) as a result of alleged acts constitute fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; (ii) the Servicer shall not indemnify the Seller, the Managing Facility Agent, the Administrative Agent, the Co-Administrative Agents or any Purchaser for any liabilities, costs or expenses with respect to any action taken by or at the request of any Purchasers, the Managing Facility Agent, the Administrative Agent, any Co-Administrative Agent, any Co-Agent or any Agent; (iii) the Servicer shall not indemnify the Seller, the Managing Facility Agent, the Administrative Agent, the Co-Administrative Agents or any Purchaser as to any losses, claims or damages incurred by any of them in their capacities as investors, including without limitation losses incurred as a result of Defaulted Receivables which are written off as uncollectible; and (iiiv) the Servicer shall not indemnify the Seller, the Managing Facility Agent, the Administrative Agent, the Co-Administrative Agents or any Purchaser for any liabilities, costs or expenses of any such Person arising under any Tax tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers any such Person in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 subsection 3.7 shall survive the resignation or removal payment in full of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this Agreementobligations hereunder.
Appears in 1 contract
Indemnification of the Seller. the Backup Servicer, the Collateral Custodian, the Deal Agent and the PurchasersSecured Parties. The Servicer shall indemnify and hold harmless the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent and each Purchaser Secured Party and their respective officers, directors, employees and agents (collectively, the "Indemnified Persons") from and against any loss, liability, expense, damage or injury suffered or sustained by any Indemnified Person by reason of any acts, omissions or alleged acts or omissions of the Servicer, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and (ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers Secured Parties in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fidelity Leasing Inc)
Indemnification of the Seller. the Backup Servicer, the Collateral Custodian, the Deal Agent and the Purchasers. The Servicer shall Buyer will indemnify and hold harmless the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent Seller and each Purchaser its directors and their respective officers, directors, employees and agents officers (collectively, the "Indemnified Persons"“Seller Parties”) harmless from any and against any loss, liability, expense, damage all Losses that the Seller Party may suffer or injury suffered incur as a result of or sustained by any Indemnified Person by reason relating to:
(a) the breach of any acts, omissions representation or alleged acts warranty made by the Buyer in this Agreement or omissions pursuant hereto;
(b) the breach of any covenant or agreement made by the Servicer, including, but not limited to Buyer in this Agreement or pursuant hereto;
(c) any judgment, award, settlement, reasonable attorneys' claim for brokers’ or finders’ fees and other costs or expenses incurred agents’ commissions arising from or through the Buyer or any of its Affiliates in connection with the defense negotiation or consummation of the transactions contemplated by this Agreement;
(d) any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and (ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto liability for Environmental Claims relating to or arising from a failure the activities and operations of the Company or the Surviving Corporation after the Effective Time regardless on when the environmental hazard giving rise to comply therewithsuch liability hereunder is discovered and any liability for any Abandonment and Reclamation Obligations of the Company (or its successor) other than those relating to any xxxxx, structures, buildings, pipelines, equipment and other facilities or any lands that are, or are required pursuant to be paid applicable Law to be, abandoned, decommissioned or reclaimed, as the case may be, after the Effective Time; or
(e) any liability with respect to employees of the Company or the Surviving Corporation occurring after the Effective Time. provided that, except with respect to any fraud or willful misconduct by the Sellerparty from whom indemnification is sought in connection with this Agreement, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers documents executed in connection herewith or the transactions contemplated hereby, for which no such limitations shall apply, the Seller Parties will not be entitled to indemnification under Section 7.2(a) unless the aggregate amount of all Losses for which the Seller Parties are entitled to indemnification exceeds U.S.$200,000 in which case the Seller Parties will be entitled to indemnification for the entire amount of such Losses, and the maximum aggregate liability for which the Seller Parties will be entitled to indemnification under Section 7.2(a) is U.S.$2,350,000; and, provided further, that the Seller Parties will not be entitled to indemnification for any taxing authorityLosses for which the Buyer Parties are entitled to indemnification under Section 7.1. The provisions of this indemnity Section 7.2 are intended to be for the benefit of, and shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 by, each director and such payment fully indemnified the recipient thereof officer of Seller, his or her heirs, executors, administrators and the recipient thereafter collects any payments from others other representatives (collectively, “Seller Third Party Beneficiaries”) and are in respect of such Indemnified Amountsaddition to, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others and not in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmlesssubstitution for, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerationsrights to indemnification or contribution that any such Person may have by contract or otherwise. The parties hereto agree that Seller shall hold the provisions rights and benefits of this Section 6.19 shall not be interpreted to provide recourse to 7.2 in trust for and on behalf of the Seller against loss by reason Third Party Beneficiaries and Seller hereby accepts such trust and agrees to hold the benefit of and enforce performance of such covenants on behalf of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this AgreementSeller Third Party Beneficiaries.
Appears in 1 contract
Indemnification of the Seller. (a) From and after the Backup ServicerClosing Date, Seller shall be entitled to indemnification from the Collateral CustodianBuyers, the Deal Agent jointly and the Purchasers. The Servicer shall indemnify and hold harmless the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent and each Purchaser and their respective officers, directors, employees and agents (collectively, the "Indemnified Persons") severally as provided herein from and against any loss, liability, expense, damage or injury suffered or sustained and all Losses and Expenses incurred by any Indemnified Person by reason of any acts, omissions or alleged acts or omissions of the Servicer, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred Seller in connection with the defense or arising from:
(i) any breach by any Buyer of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses its covenants in this Agreement; and
(ii) any breach of any such Indemnified Party warranty or other non-monetary damages the inaccuracy of any representation of any Buyer contained in this Agreement or any certificate delivered by any Buyer pursuant hereto.
(b) For purposes of determining under Section 11.03(a)(ii) whether there is any inaccuracy in, or whether there has been a breach of, any such Indemnified Party. representation or warranty, and the amount of any Losses and Expenses associated therewith, the Parties agree (i) that all references to “material,” “materially,” “materiality,” or “Material Adverse Effect” will be disregarded, (ii) that the representations and warranties are made for purposes of Section 11.03(a)(ii) as if those disregarded words were not included.
(c) Notwithstanding the foregoing, in no event shall the Servicer shall not Buyers be obligated pursuant to Section 11.03(a)(ii) to indemnify an Indemnified Person if such lossSeller for any claim (or series of related or similar claims) unless any single Loss or Expense exceeds $100,000 or until any series of Losses or Expenses of less than $100,000 determined to be due and for which the Seller seeks or have sought indemnification hereunder exceeds a cumulative aggregate amount equal to the Basket Amount, liabilityin which event the Seller shall, expensesubject to the other limitations in this Section, damage or injury results or arises be indemnified in a maximum amount equal to the lesser of (i) as a result the amount by which the aggregate amount of fraud, gross negligence or breach of fiduciary duty by all such Indemnified Person; Losses and Expenses exceeds the Basket Amount and (ii) the maximum indemnity amount set forth in Section 11.03(e), in each case, less any amounts previously paid under this Section by the Buyers.
(d) The indemnification provided for in Section 11.03(a) shall survive for the applicable statute of limitations; provided that the indemnification pursuant to Section 11.03(a)(ii) (other than with respect to the representations contained in Sections 4.01 and 4.02, which shall survive indefinitely) shall terminate on the date that is fifteen (15) months after the Closing Date (and no claims shall be made by any Tax lawSeller under Section 11.03(a)(ii) thereafter), including without limitation except in respect to indemnification in respect of any federal, state Loss or local income or franchise taxes Expense or any other Tax imposed circumstance that is reasonably likely to result in a Loss or Expense of which Seller shall have notified the Buyers in accordance with the requirements of Section 11.03 on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject prior to the limitations hereof. If date such indemnification would otherwise terminate in accordance with this Section 11.03, as to which the Servicer has made any indemnity payment indemnification obligation shall continue until the liability shall have been determined pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof 11.03, and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient indemnification obligation shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in have been satisfied under this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. 11.03.
(e) The parties hereto agree that the provisions of this Section 6.19 Buyers shall not be interpreted required to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pay an aggregate amount pursuant to this Section shall not be payable from the Assets. The obligations 11.03(a) in excess of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this Agreement$1,000,000.
Appears in 1 contract
Samples: Asset Purchase Agreement (Green Plains Renewable Energy, Inc.)
Indemnification of the Seller. From and after the Backup ServicerClosing, the Collateral Custodian, the Deal Agent Purchasers and the Purchasers. The Servicer shall indemnify Company jointly and hold harmless severally agree to indemnify, defend and save the SellerSeller and its directors, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent and each Purchaser and their respective officers, directorsaffiliates, employees legal representatives, heirs, successors, assigns, agents and agents affiliates (each, a "Seller Indemnified Party") forever harmless from and against, and to promptly pay to a Seller Indemnified Party or reimburse a Seller Indemnified Party for, any and all losses, damages, expenses (including, without limitation, court costs, amounts paid in settlement, judgments, reasonable attorneys' fees or other expenses for investigating and defending, including, without limitation, those arising out of the enforcement of this Agreement), suits, actions, claims, deficiencies, liabilities or obligations (collectively, the "Indemnified PersonsLosses") sustained or incurred by such Seller Indemnified Party relating to, caused by or resulting from and against (i) any lossmisrepresentation or breach of warranty, liabilityor failure to fulfill or satisfy any covenant or agreement made by the Purchasers contained herein or in any certificate, expenseschedule, damage document or injury suffered other writing delivered by the Purchasers pursuant hereto, or sustained any covenant or agreement made by the Purchasers in any certificate, schedule, document or other writing delivered by the Purchasers pursuant hereto, (ii) Seller's ownership of the Company from September 29, 1995 to the date hereof or (iii) service by any Indemnified Person by reason past or present director, officer or employee of any acts, omissions Seller as a director or alleged acts or omissions officer of the Servicer, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs Company or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty services provided by such Indemnified Person; and (ii) under any Tax lawpersons to the Company, including without limitation any federalprovided, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Sellerhowever, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or that the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 Company shall not be interpreted required to provide recourse to indemnify past or present directors, officers or employees of the Seller against loss by reason for Losses in connection with services rendered to Company if such Losses result from conduct which is outside the scope of such persons' responsibilities for the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this AgreementCompany.
Appears in 1 contract
Samples: Stock Purchase Agreement (Leak X Environmental Corporation)
Indemnification of the Seller. To the Backup Servicerfullest extent permitted by applicable law (or any successor provision) the Company its predecessors, parent corporations, holding companies, subsidiaries, affiliates, successors and assigns, and all of their officers, directors and employees (collectively the Collateral Custodian“Company Indemnitors”) shall defend, the Deal Agent and the Purchasers. The Servicer shall protect, indemnify and hold harmless the Sellerindemnify Seller and its predecessors, the Backup Servicerparent corporations, the Collateral Custodianholding companies, the Deal Agentsubsidiaries, the Liquidity Agent affiliates, successors and each Purchaser assigns, and all of their respective officers, directors, directors and employees and agents (collectively, collectively the "Indemnified Persons"“Seller Indemnitees”) from and against any loss, liability, expense, damage or injury suffered or sustained by any Indemnified Person by reason of any acts, omissions or alleged acts or omissions of the Serviceragainst, including, without limitation any and all actions, causes of action, suits, claims, losses, judgments, fines, settlement payments, costs, penalties, fees, liabilities, controversies, executions, of any kind or nature whatsoever, whether known or unknown, damages, and expenses in connection therewith (irrespective of whether any Seller Indemnitiees is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements, incurred or paid by any Seller Indemnitees as which have arisen, or may have arisen, or shall arise by reason as result of, or arising out of, or relating from any cause of action, suit or claim brought or made against any such Seller Indemnitees arising out of or resulting for any reason, including but not limited to from the execution, delivery, performance or enforcement of the Transaction Documents, this Agreement, the transactions contemplated hereunder or any judgmentother instrument, awarddocument or agreement executed pursuant hereto by any of the parties hereto the indebtedness, settlementrights, obligations or claims underlying the same, at any point in time. To the extent that the foregoing undertaking by the Company Indemnitors may be unenforceable for any reason, the Company Indemnitors shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities identified herein, which is permissible under applicable law. Promptly after receipt by any Seller Indemnitees of a notice of the assertion of a claim against them as contemplated herein, the Seller Indemnitees will give the Company Indemnitors written notice of the assertion of such claim. If any claim is brought against the Seller Indemnitees by means of a proceeding and the Seller Indemnitees gives written notice to the Company Indemnitors of the commencement of such proceeding, the Company Indemnitors will be entitled to participate in such proceeding and, to the extent that it wishes (unless (i) any Company Indemnitors are also a party to such proceeding and the Seller Indemnitees determine in good faith that joint representation would be inappropriate or (ii) the Company Indemnitors fail to provide reasonable attorneys' assurance to Seller Indemnitees of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), to assume the defense of such proceeding with counsel satisfactory to the Seller Indemnitees. After written notice from the Company Indemnitors to the Seller Indemnitees of its election to assume the defense of such proceeding, the Company Indemnitors will not, as long as it diligently conducts such defense, be liable to the Seller Indemnitees under this indemnification for any fees and of other costs counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Seller Indemnitors in connection with the defense of any actual or threatened actionsuch proceeding, proceeding or claimother than reasonable costs of investigation. If the Company Indemnitors assumes the defense of a proceeding, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result except for claims with respect to willful misconduct or which indemnification would be contrary to state law, it will be conclusively established for purposes of fraud, gross negligence or breach this indemnification that the claims made in that proceeding are within the scope of fiduciary duty by such Indemnified Personand subject to indemnification; and (ii) under any Tax law, including without limitation any federal, state no compromise or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to settlement of such claims may be paid effected by the SellerCompany Indemnitors without the Seller Indemnitees’, consent, which consent shall not unreasonably withhold. If written notice is given to the Company Indemnitors of the commencement of any proceeding and the Company Indemnitors do not, within ten (10) business days after the Seller Indemnitees’ written notice is given, give written notice to the Seller Indemnitees of their election to assume the defense of such proceeding, the Backup Servicer, Company Indemnitors will be bound by any determination made in such proceeding. To the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to extent that there is any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason discrepancy between the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive Agreement and the resignation Company’s current Articles of Incorporation or removal of the Deal AgentBylaws, the Liquidity Agent, document providing the Backup Servicer or the Collateral Custodian and the termination broadest scope of this Agreementindemnification shall apply.
Appears in 1 contract
Indemnification of the Seller. the Backup Servicer, the Collateral Custodian, the Deal Agent Administrator and the PurchasersMSFC. The Servicer shall indemnify and hold harmless Without limiting any other rights that the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent and each Purchaser and Administrator or MSFC or any of their respective Affiliates or directors, officers, directors, employees and or agents (collectively, the "Indemnified Persons") may have under any Transaction Documents or under applicable law, the Servicer hereby agrees to indemnify and hold harmless each Indemnified Person, from and against any lossand all damages, liabilitylosses, expenseclaims, damage or injury suffered or sustained by any Indemnified Person by reason of any actsliabilities, omissions or alleged acts or omissions of the Servicerjudgements, awards, settlements and related costs and expenses, including, but not limited to any judgment, award, settlementwithout limitation, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, disbursements but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified PartyParty (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by such Indemnified Person by reason of any acts, omissions or alleged acts or omissions of the Servicer or otherwise incurred in connection with the transactions contemplated by the Transaction Documents. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury Indemnified Amount results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and (ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent Administrator or the Purchasers MSFC in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 6.19 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others (and does not have to repay to such others) in respect of such indemnified amountsIndemnified Amounts. Without limiting the foregoing, the Servicer shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Purchased Asset treated as, or represented to be, an Eligible Contract which is not at the applicable time an Eligible Contract;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its respective officers under or in connection with any Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with any term, provision or covenant contained in any Transaction Document or any agreement executed in connection with any Transaction Document, or with any applicable law, rule or regulation with respect to any Asset, the related Contract, or the nonconformity of any Asset, the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Administrator or to transfer to the Administrator an undivided ownership interest in the Assets, together with all Collections, free and clear of any Adverse Claim whether existing at the time of any Purchase or at any time thereafter;
(v) the failure to monitor that, as of the close of business on each Business Day prior to the Termination Date, the amount of Capital outstanding less than or equal to the lesser of (x) the Purchase Limit on such Business Day or (y) the Capital Limit on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Assets which are, or are purported to be, Pool Assets, whether at the time of any Purchase or at any subsequent time;
(vii) any failure of the Servicer to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
(viii) the failure to monitor that the Seller has paid when due any Taxes for which the Seller is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Pool Assets;
(ix) the commingling of Collections of Pool Assets at any time with other funds;
(x) any failure to monitor that the Seller has given reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Seller of any Assets;
(xi) the failure of the Servicer or any of its respective agents or representatives to remit Collections of Pool Assets in accordance herewith; or
(xii) any amounts payable under the Hedge Transactions for any Settlement Period in excess of Interest Collections for such Settlement Period or any failure of the Hedge Transactions to comply at all times with the requirements of Section 5.4, including, without limitation, having a Hedge Notional Amount that complies at all times with Section 5.4(iii). Any amounts subject to the indemnification provisions of this Section 6.19 shall be paid by the Servicer to the Indemnified Person within two Business Days following its demand therefor. Notwithstanding the foregoing, if any such amounts are paid pursuant to Section 2.9(b), then the Servicer shall immediately deposit the amount so paid into the Collection Account for subsequent distribution in accordance with Section 2.9(b). If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity AgentAdministrator, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fidelity Leasing Inc)
Indemnification of the Seller. Buyer covenants and agrees with Seller that, from and after the Backup ServicerClosing, the Collateral Custodian, the Deal Agent it shall reimburse and the Purchasers. The Servicer shall indemnify and hold harmless the SellerSeller and its members, the Backup Servicermanagers, the Collateral Custodian, the Deal Agent, the Liquidity Agent and each Purchaser and their respective officersshareholders, directors, employees officers, employees, agents, affiliates and agents subsidiaries and assigns (collectivelythe "SELLER INDEMNIFIED PARTIES") harmless from, against and in respect of any and all Claims incurred by any of Seller Indemnified Parties that result from:
(a) any inaccuracy in or breach of any representations or warranties made by Buyer in this Agreement, the "Indemnified Persons"Exhibits, the Schedules, any agreements entered into by the parties contemporaneously herewith or on the Closing Date, if any, or any written certificate furnished to Seller by or on behalf of Buyer pursuant to this Agreement (disregarding, for purposes of this Section 10.2, any materiality qualifiers set forth therein);
(b) from and against any loss, liability, expense, damage or injury suffered or sustained by any Indemnified Person by reason nonfulfillment of any actscovenant or agreement of Buyer under this Agreement, omissions any agreements entered into by the parties contemporaneously herewith or alleged acts on the Closing Date, if any, or omissions of the Serviceragreements and instruments contemplated herein;
(c) the Assumed Liabilities;
(d) any fees, including, but not limited expenses or other payments incurred or owed by Buyer pursuant to Section 13.6 hereof or to any judgmentbrokers or comparable third parties retained or employed by it or its affiliates in connection with the transactions contemplated by this Agreement, awardother than Xxxxx & Co., settlementwhose fees shall be shared equally by Buyer and Seller;
(e) any claims made by a third party alleging facts which, if true, would entitle any Seller Indemnified Party to indemnification pursuant to (a) through (d) above;
(f) any failure of Buyer to comply with its obligations under this Section 10.2;
(g) any fees or expenses (including without limitation, reasonable attorneys' fees and fees) incurred by any Seller Indemnified Party in enforcing its rights hereunder to the extent that such Seller Indemnified Party prevails in enforcing such rights; or
(h) any claim, liability or obligation incurred or owed by Buyer relating to the operation or ownership of the Station or the Broadcasting Assets after the Closing Date (except for the Retained Assets). The amounts for which Buyer shall be liable under this Section 10.2 shall be net of any insurance proceeds (or any other costs or expenses incurred recoveries) paid to Seller Indemnified Parties in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and (ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject facts giving rise to the limitations hereofright of indemnification. If the Servicer has made any indemnity payment pursuant to this Buyer's indemnification obligation under Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others 10.2 arises in respect of an adjustment which makes allowable to any Seller Indemnified Party any Tax Benefits which would not, but for such Indemnified Amountsadjustment, the recipient be allowable, then Seller shall repay pay to the Servicer Buyer an amount equal to the actual Tax saving produced by such Tax Benefit at the time such Tax saving is realized by the Seller Indemnified Party; provided, however, that the amount it has collected from others of any such payment to Buyer shall not exceed the amount of any indemnity payment made by Buyer with respect to the adjustment giving rise to the Tax Benefit. The amount of any such Tax saving for any Tax period shall be the amount of the reduction in Taxes payable to a Taxing authority with respect to such Tax period as compared to the Taxes that would have been payable to a Taxing authority by Seller or any Seller Indemnified Party in the absence of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this AgreementTax Benefit.
Appears in 1 contract
Samples: Stock Purchase Agreement (Granite Broadcasting Corp)
Indemnification of the Seller. (a) Subject to the Backup Servicer----------------------------- provisions of this Article XIII, by execution of this Agreement, the Collateral Custodian, Purchaser hereby acknowledges that the Deal Agent Seller shall be entitled to full indemnification by the Purchaser of the following and the Purchasers. The Servicer shall Purchaser hereby agrees to indemnify and hold harmless the SellerSeller from:
(i) any and all Losses incurred by the Seller incident to, the Backup Servicerarising in connection with or resulting from any misrepresentation, the Collateral Custodianbreach, the Deal Agent, the Liquidity Agent and each Purchaser and their respective officers, directors, employees and agents (collectively, the "Indemnified Persons") from and against any loss, liability, expense, damage nonperformance or injury suffered or sustained by any Indemnified Person by reason inaccuracy of any actsrepresentation, omissions warranty or alleged acts covenant by the Purchaser made or omissions of contained in this Agreement or in any exhibit, schedule, certificate or other document executed and delivered to the ServicerSeller by the Purchaser; and
(ii) any and all Losses incurred in claiming, contesting or remedying any breach, misrepresentation, nonperformance or inaccuracy described above, or in enforcing its rights to indemnification hereunder, including, but by way of illustration and not limited to any judgmentlimitation, awardall reasonable legal and accounting fees, settlement, other reasonable attorneys' professional expenses and all filing fees and other reasonable collection costs or incident thereto and all such reasonable fees, costs and expenses incurred in connection with defending claims which, if successfully prosecuted, would have resulted in a Loss.
(b) By execution of this Agreement, such Shareholder hereby acknowledges as to such Shareholder only that the defense Seller shall be entitled to full indemnification by such Shareholder of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any the following and such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding Shareholder hereby agrees to indemnify and hold harmless the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises Seller from:
(i) as a result any and all Losses incurred by the Seller incident to, arising in connection with or resulting from any misrepresentation, breach, nonperformance or inaccuracy of fraudany representation, gross negligence warranty or breach of fiduciary duty covenant set forth in this Agreement by such Indemnified PersonShareholder made or contained in this Agreement or in any exhibit, schedule, certificate or other document executed and delivered to the Seller by such Shareholder under or pursuant to this Agreement or the transactions contemplated herein; and and
(ii) under any Tax lawand all reasonable costs and expenses and all other Losses incurred in claiming, including without limitation contesting or remedying any federalbreach, state misrepresentation, nonperformance or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) ofinaccuracy described above, or default byin enforcing its rights to indemnification hereunder, related Obligor onincluding, any Pool Asset. Any indemnification pursuant to this Section shall by way of illustration and not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agentlimitation, the Liquidity Agentall reasonable legal and accounting fees, the Backup Servicer or the Collateral Custodian other reasonable professional expenses and the termination of this Agreementall filing fees and reasonable collection costs incident thereto and all such reasonable fees, costs and expenses incurred in defending claims which, if successfully prosecuted, would have resulted in a Loss.
Appears in 1 contract
Indemnification of the Seller. (a) Subject to the Backup Servicerother provisions of this Article 8, following the Closing, the Collateral Custodian, the Deal Agent and the Purchasers. The Servicer Purchaser shall indemnify and hold harmless the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent Seller and each Purchaser its Affiliates and its and their respective officersRepresentatives, directors, employees successors and agents assigns (collectively, the "“Seller Indemnified Persons"Parties”) from and against any lossLoss which they may suffer, liabilitysustain or become subject to as the result of, expense, damage or injury suffered or sustained by any Indemnified Person by reason of any acts, omissions or alleged acts or omissions of the Servicer, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, but excluding allocations of overhead expenses of any such Indemnified Party or other non-monetary damages of any such Indemnified Party. Notwithstanding the foregoing, the Servicer shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises arising from:
(i) as a result of fraud, gross negligence any non-fulfillment or breach of fiduciary duty by any covenant or other agreement of the Purchaser or the Company under this Agreement (in the case of the Company, solely to the extent such Indemnified Personcovenant or other agreement was to be performed after the Closing); and or
(ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes (A) the Seller or any of its Affiliates issuing, making any payment under, being required to pay or reimburse the issuer of, or being a party to (the Seller or such Affiliate, a “Guarantor”), any guarantee, indemnity, surety bond, letter of credit, letter of comfort, commitment or other Tax imposed similar obligation relating to the Business or the Company set forth on Schedule 8.03(a)(ii) of the Seller Disclosure Letter to the extent arising from and after the Closing (collectively, the “Parent Guarantees”) or measured by income (B) any claim or demand for payment made on the Seller or any interest or penalties of its Affiliates with respect thereto to any of the Parent Guarantees, or any Action by any Person who is or claims to be entitled to the benefit of or claims to be entitled to payment, reimbursement or indemnity with respect to any of the Parent Guarantees, in each case to the extent arising from a failure and after the Closing; provided, however, that the Purchaser shall have no obligation in respect of any Parent Guarantees unless and to comply therewith) required to be paid by the Seller, extent the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party assets subject to the limitations hereof. If Parent Guarantees (the Servicer has made “Guaranteed Assets”) are held by the Company or its Subsidiaries as of the Closing (any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified Guaranteed Assets which are held by the recipient thereof and Company or its Subsidiaries as of the recipient thereafter collects any payments from others in respect of such Indemnified AmountsClosing, the recipient shall repay “Applicable Guaranteed Assets”).
(b) Notwithstanding anything to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above contrary in this Section 6.19 is unavailable to Agreement, the Seller Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 Parties shall not be interpreted entitled to provide recourse indemnification with respect to a claim for indemnification under Section 8.03(a) unless the applicable Seller Indemnified Party has provided the Purchaser with a Claim Notice with respect to such claim in accordance with Section 8.04(a).
(c) The Seller shall use, and shall cause its Affiliates to use, commercially reasonable efforts to mitigate any Loss for which indemnification may be sought hereunder upon becoming aware of any event that would reasonably be expected to, or does, give rise thereto, in each case, to the Seller against loss extent required by reason the Laws of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations State of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this AgreementDelaware.
Appears in 1 contract
Samples: Stock Purchase Agreement (Dole PLC)
Indemnification of the Seller. From and after the Backup ServicerClosing Date, the Collateral CustodianPurchaser and Fundtech, the Deal Agent jointly and the Purchasers. The Servicer severally, shall indemnify indemnify, defend and hold harmless the SellerSeller and its directors, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent and each Purchaser and their respective officers, directorsemployees, employees agents and agents Affiliates (collectivelycollectively (including the Seller), the "Indemnified PersonsSeller Indemnitees") from and against any lossand all Liabilities incurred by the Seller arising out of, liabilityresulting from or in connection with:
(a) the breach by the Purchaser or Fundtech of any representation or warranty of the Purchaser or Fundtech contained in this Agreement;
(b) any breach by the Purchaser or Fundtech of any agreement or covenant of the Purchaser or Fundtech contained in this Agreement; and
(c) the assertion against, expense, damage imposition upon or injury suffered or sustained incurrence by any Indemnified Person by reason such Seller Indemnitee of any actsAssumed Liability; provided, omissions that with respect to any individual Seller Agreement or alleged acts or omissions Specified Agreement relating to the Owned Software, the Purchaser's obligation to indemnify, hold harmless and defend the Seller under this Section 6.2(c) shall be limited to the amount of the Servicerannual maintenance fee payable under such Seller Contract or Specified Contract, includingas applicable, but such monetary limitation shall not limited apply to the extent the Owned Software is modified after the Closing Date and to the extent such modification causes an increase in such liability or to the extent that such Seller Agreement or Specified Agreement is modified in any way that would result in an amount of liability greater than the amount of the annual maintenance fee payable under such Seller Agreement or Specified Agreement. The foregoing obligations of the Purchaser and Fundtech with respect to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with breach by the defense Purchaser of any actual particular representation or threatened actionwarranty made by the Purchaser shall terminate on the Expiration Date applicable to such representation and warranty (except that such obligations shall thereafter continue in full force and effect with respect to any Claim of which the Purchaser has received written notice prior to the Expiration Date). The obligations of the Purchaser and Fundtech under this Section 6.3 shall only become operative and effective if and when the aggregate of all Liabilities for which any Seller Indemnitees seeking indemnification under this Section 6.3 exceeds $50,000 (it being understood that all such Liabilities shall accumulate until such time as they exceed $50,000, proceeding at which time the Purchaser and Fundtech shall be obligated to indemnify, hold harmless and defend any Seller Indemnitees seeking indemnification under this Section 6.3 for the full amount of such Liabilities, including the first $50,000). If the Purchaser and Fundtech shall at any time be liable to the Seller Indemnitees pursuant to this Agreement (including this Section 6.3), notwithstanding anything to the contrary contained herein, the cumulative amount of all Liabilities recoverable against the Purchaser and Fundtech shall not exceed (a) $2,197,848, in the aggregate, with respect to (i) Liabilities arising out of, based upon or claim, but excluding allocations of overhead expenses resulting from the breach or breaches by the Purchaser and/or Fundtech of any such Indemnified Party representation or other non-monetary damages warranty contained in this Agreement, (ii) Liabilities arising out of, based upon or resulting from the assertion against, imposition upon or incurrence by any Seller Indemnitee of any Assumed Liability and (iii) any breach by the Purchaser or Fundtech of any agreement or covenant of the Purchaser or Fundtech (other than Section 2.12) contained in this Agreement and (b) $4,395,696 with respect to any breach by the Purchaser of Section 2.12. Such maximum liability of the Purchaser and Fundtech shall be reduced to the extent of any insurance proceeds received by any of the Seller Indemnitees for such Indemnified PartyLiabilities from the Purchaser, any of its Affiliates or any of their respective insurance carriers. Notwithstanding the foregoing, the Servicer cumulative amount of all Liabilities recoverable against the Purchaser and Fundtech shall not indemnify an Indemnified Person if such loss, liability, expense, damage or injury results or arises (i) as a result of fraud, gross negligence or breach of fiduciary duty by such Indemnified Person; and (ii) under any Tax law, including without limitation any federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Seller, the Backup Servicer, the Collateral Custodian, the Deal Agent, the Liquidity Agent or the Purchasers in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. If the Servicer has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Servicer an amount equal to the amount it has collected from others in respect of such indemnified amounts. If for any reason the indemnification provided above in this Section 6.19 is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and Servicer on the other hand but also the relative fault of such Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of this Section 6.19 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset. Any indemnification pursuant to this Section shall not be payable from the Assets. The obligations of the Servicer under this Section 6.19 shall survive the resignation or removal of the Deal Agent, the Liquidity Agent, the Backup Servicer or the Collateral Custodian and the termination of this Agreementexceed $4,395,696.
Appears in 1 contract
